S.Navas vs K.P.Jawahar

Kerala High Court

S.Navas vs K.P.Jawahar on 22 May, 2024

Author: T.R.Ravi

Bench: T.R.Ravi

RSA No.843 of 2021
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               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE T.R.RAVI
      WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
                        RSA NO. 843 OF 2021
 AGAINST THE JUDGMENT AND DECREE DATED 10.11.2021 IN AS NO.31 OF
  2018 OF SUB COURT,KOTTARAKKARA ARISING OUT OF THE JUDGMENT AND
   DECREE DATED 26.02.2018 IN OS NO.31 OF 2012 OF MUNSIFF COURT,
                            KOTTARAKKARA
APPELLANT/1ST RESPONDENT/PLAINTIFF:

            S.NAVAS
            SON OF SAINULABDEEN, THACHARIPALLATH VEEDU (WRONGLY
            STATED AS PACHARIPALLATH IN THE JUDGMENT), THITTAMEL
            MURI (WRONGLY STATED AS THRIPPANAYIL MURI IN THE
            JUDGMENT) CHENGANNUR VILLAGE, CHENGANNUR , CHENGANNUR
            P.O., CHENGANNUR TALUK, PIN-689 121
            BY ADVS.
            SRI K.K.CHANDRAN PILLAI (SR.)
            SMT.S.AMBILY
            MICKY THOMAS


RESPONDENTS/APPELLANT & 2ND RESPONDENT/DEFENDANTS:

     1      K.P.JAWAHAR
            AGED 54,S/O. PICHA MUHAMMED RAWTHER, PALLICKACHUVATTIL
            VEEDU, KOLLAIL P.O., SATHAYMANGALAM, CHIRAVOOR MURI,
            CHITHARA VILLAGE, KOTTARAKKARA TALUK,PIN-691 559
     2      K.P.MIZHSA
            AGED 49, S/O. PICHA MUHAMMED RAWTHER, (WRONGLY STATED
            AS MIRSA IN JUGEMENT), PALLICKACHUVATTIL VEEDU, KOLLAIL
            P.O., SATHAYMANGALAM, CHIRAVOOR MURI, CHITHARA VILLAGE,
            KOTTARAKKARA TALUK, PIN-691 559
            BY ADVS.
            SRI V.PREMCHAND
            SRI SURYA MOHAN P.
     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
18.12.2023, THE COURT ON 22.05.2024 THE FOLLOWING:
 RSA No.843 of 2021
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                                T.R.RAVI.J
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                          RSA No.843 of 2021
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                  Dated this the 22nd day of May, 2024

                                JUDGMENT

The appeal has been filed by the plaintiff being aggrieved by the judgment of the First Appellate Court, reversing the decree granted in his favour by the trial court. The parties are referred to as per their status before the trial court.

2. The suit was filed initially with a prayer for injunction and was later amended to include the prayer for declaration of title and possession. The defendants are brothers and are children of one Picha Mohammed Rawther. Plaint A and B schedule properties originally belonged to the father of the defendants. The plaintiff purchased the properties as per sale deed No.1213/2009 dated 26.09.2009 of Chithara Sub Registry Office. Plaint A schedule property is of an extent of 40.47 Ares equivalent to 1 Acre comprised in Re.Sy.No.169/7 in Block No.666 of Chithara Village. Plaint B schedule is of an extent of 25.75 of land comprised in Re.Sy.No.385/3 in Block No.55 of the same village. Plaint B schedule lies at a RSA No.843 of 2021 3 distance of about 1 ½ kilometers from A schedule property. According to the plaintiff, there is a mud wall, wire fencing, etc., demarcating the property. Both A and B schedule properties are planted with rubber. The suit was initially filed for injunction on the averment that the defendants were trying to trespass into the properties and committing waste. According to the plaintiff, the attempt was to take back the property which had been transferred to the plaintiff by the father of the defendants.

3. The defendants filed separate written statements. The 1st defendant contended that the description of the property is incorrect. It is contended that plaint A and B schedule properties are not lying separately, and the said contention is belied by the Commission Report. It is also stated that he was not aware of any sale deed being executed by his father in favour of the plaintiff. It is further stated that without a proper survey of the property and a survey plan, it is not possible to identify the property which is claimed by the plaintiff. According to the 1st defendant, the defendants and their parents were having difference of opinion and several cases were pending between them, and RSA No.843 of 2021 4 taking advantage of the above situation, the plaintiff had obtained a sale deed in his favour and filed the suit. It is further contended that the properties are still in the possession of the parents and the 1 st defendant has no need to encroach into the plaint schedule properties. It is further contended that the plaint schedule properties are a portion of a larger extent of property in which the parents of the defendants were residing.

4. The 2nd defendant in his written statement contended that suit for injunction simpliciter will not lie without a prayer for declaration of title and possession. It is contended that since the plaintiff did not have title or possession, the suit for injunction will not lie. He has also contended that description shown in the plaint is incorrect, as can be seen from the rough sketch prepared by the Advocate Commissioner. It is also contended that the Commissioner has failed to identify the plaint schedule property and that A and B schedule properties are not separated from adjacent properties. He also contends that the property must be located by survey and demarcation. Another contention that is taken by the 2 nd defendant is that RSA No.843 of 2021 5 plaint A and B schedule properties have been transferred in his favour by an oral gift by his parents on 20.12.2000. He claims that he has other properties near plaint A and B schedule properties, planted with rubber, and he is taking yield from the said trees also. He therefore contends that his parents did not have any right to execute any sale deed in favour of the plaintiff since they did not have any title or possession over the property, which they had parted after the oral gift. It is further stated that the 2 nd defendant had filed OS.No.91/2009 against his father, sister and brother and for declaration of the title and possession of the property covered by the oral gift. A writ petition had been filed before this Court in connection with the said dispute and the matter was referred to a mediator and the parties had settled the issue between them. It is further stated that the plaintiff was aware of all these proceedings, but he had suppressed the same in the suit. It is also claimed that mutation was obtained by fraudulent means and there are no boundaries separating the plaint schedule property and the 2 nd defendant is tapping the rubber in the plaint schedule properties along with those in his adjoining property. RSA No.843 of 2021 6

5. Pending the suit, the plaintiff had got the suit amended by inclusion of a prayer for declaration of title and possession over plaint A and B schedule properties and with prayers to fix the eastern and southern boundaries of plaint A schedule property and the eastern boundary of plaint B schedule property and for permission to put up a boundary through the intervention of the Court. The defendants filed additional written statements after the amendment of the suit. Additional schedules of properties were also included by amendment. The property of the 1st defendant situated on the eastern side of A schedule has been included as plaint C schedule and the property of the 2nd defendant on the southern side of A schedule has been included as D schedule in the plaint. Another item of property belonging to the 2 nd defendant situated on the eastern side of B schedule has been included as E schedule.

6. On the basis of the above pleadings, issues were framed and the parties went for trial. On the side of the plaintiff, the plaintiff was examined as PW1 and one witness was examined as PW2. Exts.A1 to A8 documents were marked. On the side of the defendants, the defendants were RSA No.843 of 2021 7 examined as DW1 and DW2 respectively. Exts.B1 to B5 were marked on their side. CW1 and CW2 were examined as Court witnesses and Exts.C1, C1(a), C1(b) C2, C2(a), C2(b) and C2(c) were marked as Court documents. All the properties scheduled to the plaint were identified by the Commissioner with the help of a surveyor and a report with sketch and plan was produced, showing the demarcation of the properties.

7. The trial Court on a detailed consideration of the facts and evidence adduced, decreed the suit declaring title and possession of the plaintiff over plaint A and B schedule properties and allowing him to put up a boundary of A and B schedule property as identified in Exts.C2(c) and C2(b). The court also granted a decree of permanent prohibitory injunction restraining the defendants from trespassing into plaint A schedule property or committing waste in it or obstructing the plaintiff from entering into or taking yield from plaint A and B schedule properties.

8. The 1st defendant accepted the judgment and did not challenge it. The 2nd defendant challenged the judgment and decree in AS.No.31/2018 before the Subordinate Judge, Kottarakkara. The Appellate Court raised the following 4 RSA No.843 of 2021 8 points for consideration;

"1. Was the suit properly valued and sufficient court fee paid?

2. Did the second defendant prove that he acquired title and possession over the plaint A and B schedule properties by an oral gift?

3. Is the identification and fixation of the boundaries of the plaint A and B schedule properties correct?

4. Should the judgment and decree be reversed, varied or modified?"

9. The Court held that the suit was properly valued and sufficient court fee has been paid. The Court also found that the 2nd defendant had not adduced any evidence to prove that he had acquired the title and possession over the plaint A and B schedule properties based on the oral gift which he had pleaded and held that the 2nd defendant's parents had title and possession over plaint A and B schedule properties and they were competent to execute sale deed in favour of the plaintiff. However, the Court compared the evidence tendered by CW1 and CW2 and held that it is unsafe to accept the version given by CW2. The Court held that the boundary cannot be determined on the basis of the location of pits and stone pillar fence, since such a fence was not present at the time of institution of the suit as spoken to by CW1. The Court found that the proper method is to identify RSA No.843 of 2021 9 the boundary between A and B schedule properties by survey on the basis of the title deed. Thereafter, the Court considered Ext.C2(c) which is the survey plan which shows the eastern boundary of plaint A schedule property and the southern boundary. Ext.C2(b) which is the survey plan of plaint B schedule property also was noticed by the Court and it was found that the eastern boundary of plaint B schedule property has been identified by 'LM' line. The court further found that the 2nd defendant had not pointed out any mistakes in the survey plans and that Exts.C2(b) and C2(c) were prepared on the basis of the title deeds. However, the court after referring to the plaint description and the description in Ext.A1 title deed and comparing it with Ext.C2(c) found that the boundaries do not tally. The said finding is against what was found earlier that Exts.C2(b) and C2(c) were prepared as per the title deed and no mistakes had been pointed out in the survey plans by the defendants. The Court noticed that the commission reports had not been challenged.

10. Regarding plaint B schedule property, the Court found that as per Ext.C2(b), there is no Panchayat Road on RSA No.843 of 2021 10 the west of plaint B schedule property but the plaint and Ext.A1 show such a way. It is also stated that 'thodu' stated to be on the south in the plaint is actually passing through the south-western tip of plaint A schedule property. Thereafter, the Appellate Court concluded that plaint A and B schedule described in the plaint differs from the property that is identified in Exts.C2(c) and C2(b) and hence it is not possible for the Court to declare the title of the plaintiff over plaint A and B schedule properties and to fix its boundaries. On such a finding, the judgment of the trial court has been reversed.

11. The second appeal was admitted on the following substantial questions of law;

(i) Whether the lower Appellate Court is legally justified in reversing the judgment and decree of the trial court without interfering with the title and possession of the plaintiff and competency of the vendors, after rejecting the case of oral gift and possession of the plaint schedule property by the 2nd defendant?

(ii) Whether the lower Appellate Court is legally correct in reversing the judgment and decree of the trial court after accepting Ext.C2, C2(b) and C2(c) which are not even objected to by the parties to the suit stating that there is difference in the boundaries of the plaint schedule property as RSA No.843 of 2021 11 shown in the plaint and as shown in Ext.A1 sale deed?

12. Heard counsel for appellant and respondents.

13. Senior counsel Sri.K.K.Chandran Pillai appearing on instructions from Smt.Ambily S. contended that there was no reason for the First Appellate Court to have interfered with the judgment and decree of the trial court. The Counsel argued that after having found that the title claimed by the 2nd defendant has not been proved and that the parents of the defendants were competent enough to transfer the property in favour of the plaintiff, there was no reason for disallowing the prayer for declaration of title on the basis of the title deeds obtained by the plaintiff from the father of the defendants. I find considerable force in the said argument. The trial court as well as the First Appellate Court specifically found that the right claimed by the 2 nd defendant over plaint A and B schedule properties on the basis of an oral gift cannot be sustained in the absence of any evidence. As against that, the plaintiff had produced the registered title deed as well as Exts.A2 to A5 tax receipts clearly showing their possession of plaint A and B schedule properties. The trial court had considered the above aspects to hold that the RSA No.843 of 2021 12 defendants have no manner of right over plaint A and B schedule properties and that there are no documents to prove their right over the same. The only question that was remaining was to fix the boundaries of plaint A and B schedule properties. In this regard, it is pertinent to note that the 1st defendant did not file an appeal and accepted the judgment of the trial court. The property of the 1st defendant which has been shown as C schedule in the plaint is on the east of A schedule. Since there was no appeal by the 1 st defendant, fixation of boundary on the east of A schedule could not have been denied. The property of the 2 nd defendant who was the appellant before the First Appellate Court are D schedule and E schedule properties. D schedule property lies on the southern side of A schedule and E schedule lies on the eastern side of B schedule. The reason noticed by the First Appellate Court, to say that the plaint schedule properties have not been properly identified is that, the northern boundary of plaint A schedule property has been described as 'thodu' in Ext.C2(b) and not as road. As a matter of fact, there was no dispute regarding the northern boundary of plaint A schedule and the Court was not RSA No.843 of 2021 13 concerned about the northern boundary. The finding that the northern boundary was different is hence beyond the point, and, so long as there was no dispute with regard to the southern boundary of A schedule property which demarcates D schedule property of the 2nd defendant, there is no reason to deny the relief of fixing the southern boundary of plaint A schedule. When it comes to B schedule property, the boundary to be fixed is the eastern boundary. The finding of the First Appellate Court is that there is a variance of the description shown in Ext.C2(b) and the plaint at Ext.A1, insofar as, there is no Panchayat road on the west of plaint B schedule property. Here again the Court was not concerned about the west of plaint B schedule and what was necessary was fixing the eastern boundary. As far as the eastern boundary is concerned, no discrepancy has been noted by the First Appellate Court in the reports and plans submitted by the Advocate Commissioner. I find that the reason of the First Appellate Court is perverse and against the evidence that has been tendered by the parties. The trial Court had clearly found that the properties have been identified and the boundaries are to be fixed as found by the Commissioner RSA No.843 of 2021 14 with the help of the Surveyor. There was absolutely no necessity to interfere with the said finding on the basis of some imaginary discrepancies in the boundaries with which the Court was not even concerned. The appellate court was hence not legally justified in reversing the judgment and decree of the trial court particularly since the appellate court has confirmed the finding of the trial court as regards the title of the plaintiff, the reports and plans Exts.C2, C2(a), C2(b) and C2(c) noting that there has been no dispute regarding the commission report and plan raised by the defendants at any point of time. The substantial questions of law framed are answered as above.

It is settled law that in cases where the trial court or the first appellate court have not appreciated the entire evidence on record from the correct perspective or there is perversity in the appreciation of the evidence or had disregarded the evidence available on record or has arrived at a conclusion based on totally irrelevant factors, it is open for this Court to interfere under Section 100 of the Code of Civil Procedure. I have already held that the reasoning of the First Appellate Court is perverse and there was no reason to RSA No.843 of 2021 15 interfere with the well-considered judgment of the trial court. The appellant is entitled to succeed in this appeal. The second appeal is allowed. The judgment and decree of the First Appellate Court is set aside and the judgment and decree in OS.No.31/2012 of the Munsiff Court, Kottarakkara is affirmed. The parties shall bear their respective costs.

Sd/-

T.R.RAVI JUDGE sn