Chandrika vs Sudhakaran
2021 Latest Caselaw 15144 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

    TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943

                       RSA NO. 834 OF 2018
[Against   the  judgment   and  decree   dated 16.3.2018    in
A.S.No.82/2016 on the file of the Subordinate Judge's Court,
Perumbavoor,    which arose from the judgment and decree dated
22.12.2015 in O.S.No 117/2012 on the file of the Munsiff's
Court, Perumbavoor]

APPELLANTS/RESPONDENTS/PLAINTIFFS:

    1       CHANDRIKA
            AGED 55, W/O. RAVEENDRAN, KOTTAYI VEETTIL,
            KUTTAMASSERY KARA, KEEZHMAD VILLAGE, ALUVA TALUK,
            ERNAKULAM DISTRICT - 683 105
    2       GEETHA,
            AGED 47,
            W/O SUDHAKARAN,
            PUTHANPURACKAL VEETTIL,
            KANNAMPARAMBU KARA, VENGOOR VILLAGE, ERNAKULAM
            DISTRICT-683546.
    3       SHANI
            AGED 42,
            W/O BABU, THEVACKAL, NARANATH VEETTIL, VADAVUCODE
            KARA, THRIKKAKKARA NORTH VILLAGE, KANAYANNOOR TALUK,
            ERNAKULAM DISTRICT-682310.
            BY ADV MEREENA .J. JOSEPH


RESPONDENT/APPELLANT/DEFENDANT:

            SUDHAKARAN
            AGED 51 YEARS
            S/O KUMARAN, PUTHANPURACKAL VEETTIL,
            VADAKKE EZHIPRAM KARA,
            VAZHAKULAM VILLAGE, KUNNATHUNADU TALUK,
            ERNAKULAM-686670.

        THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON

16.07.2021, THE COURT ON 20.07.2021 DELIVERED THE FOLLOWING:
 R.S.A.No.834 of 2018

                                    ..2..




                          JUDGMENT

This Regular Second appeal is directed

against the judgment and decree dated 16.3.2018 in

A.S.No.82/2016 on the file of the Sub Court,

Perumbavoor, (hereinafter referred to as 'the first

appellate court') which arose from the judgment and

decree dated 22.12.2015 in O.S.No 117/2012 on the

file of the Munsiff's Court, Perumbavoor (hereinafter

referred to as 'the trial court'). The appellants in the

appeal are plaintiffs in O.S.No.117/2012 and the

respondent is the defendant therein. The parties are

hereinafter referred to as 'the plaintiff' and 'the

defendants' according to their rank in the trial court

unless otherwise stated.

2. The suit was one for fixation of boundary,

declaration of title, recovery of possession, both R.S.A.No.834 of 2018

..3..

mandatory and permanent prohibitory injunction. The

trial court decreed the suit in part directing the

defendant by a mandatory injunction to remove the

construction made in the respective plaint schedule

property. The defendant was also restrained by a

decree of permanent prohibitory injunction from

trespassing into the properties of the plaintiff.

However, the prayer for fixation of boundary was

declined. The plaintiffs did not prefer any appeal

challenging the findings of the trial court. However,

the defendant appeals. The first appellate court

allowed the appeal and dismissed the suit. The

divergent judgments of the two courts below are

under challenge in this appeal.

3. The plaintiffs and the defendant are

siblings. The mother of the plaintiffs and the R.S.A.No.834 of 2018

..4..

defendant was the owner in possession of 52 cents of

property comprised in Sy.Nos.361/2 and 361/3 of

Vazhakkulam Village. Out of the 52 cents of property

referred to above, 10 cents of property was settled in

favour of the defendant and the residual property was

settled in favour of the plaintiffs by their mother by

Document No.5564/2011 of Perumbavoor Sub

Registrar Office. The respective property of the

plaintiff was included as plaint 'A' schedule property.

The defendant is admittedly residing in the north

western side of the plaint 'A' schedule property. The

plaint A schedule property was, in fact, segregated

from the property of the defendant by height

difference. It is alleged that on 28.3.2012, the

defendant commenced construction of a foundation

after encroaching into the plaint 'A' schedule property R.S.A.No.834 of 2018

..5..

on its western side. Resultantly, the suit was instituted

before the trial court. An Advocate Commissioner was

appointed to prepare a mahazar and plan with the

assistance of surveyor. The Commissioner submitted

the plan and report before the trial court. Relying on

the Commissioner's report, the plaintiff sought to

amend the plaint wherein the portion encroached by

the defendant was shown as plaint 'B' schedule. A

mandatory injunction was sought for with a direction

to the defendant to demolish the cattle shed and to

hand over vacant possession of the plaint 'B' schedule

property to the plaintiffs. A relief of declaration of title

was also prayed for along with a prayer for permanent

prohibitory injunction restraining the defendant from

trespassing into the plaint schedule property.

4. The defendant filed written statement and R.S.A.No.834 of 2018

..6..

additional written statement contending that the

description of the plaint schedule property is incorrect

and the plaintiffs had not obtained properties lying in

Sy.No.361/2. According to the defendant, an area of

8.20 ares of land lying in Re-Sy.No.361/2 is in the

absolute possession and enjoyment of the defendant.

According to them, the house of the defendant is

situated on the northern side of the aforesaid 8.20

ares and the cattle shed is situated on its southern

side. The plaintiffs filed the suit for fixation of

boundary of the property over which they have no

right at all. The defendant contended that the entire

property lying in Re.Sy.No.361/2 is in the possession

of the defendant even prior to Document

No.3214/2000. It was further contended that the

defendant had constructed granite stone foundation R.S.A.No.834 of 2018

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through the eastern and southern boundaries of his

property. Even if the plaintiffs have any right over any

portion of the property in possession of the defendant,

it was alleged that the same was lost due to adverse

possession and limitation.

5. Upon the pleadings, the trial court framed

necessary issues for trial. The plaintiff tendered oral

evidence by examining PWs.1 and 2 and Ext.A1 was

marked. The defendant did not adduce any evidence.

Exts.C1 to C2(a) were also marked.

6. The defendant mainly contended before

the trial court that since the plaintiffs have not

scheduled the property of the defendant in the plaint,

the plaintiffs are not entitled to get the relief for

fixation of boundary. The trial court declined the

prayer for fixation of boundary. When the appeal was R.S.A.No.834 of 2018

..8..

taken, the first appellate court found that the total

extent of property comprised in Re-Sy.No.361/3 is not

amended in the plaint. It was also found that the

plaintiff failed to challenge the dismissal of the suit for

fixation of boundary. The first appellate court also

found that the recovery of possession was granted

without fixing the boundary. The first appellate court

also found that the identity of the plaint 'A' schedule

property is not proved and the plaintiffs are not

entitled to get any relief.

7. Heard the learned counsel for the

appellants. The learned counsel for the appellants

contended that if the first appellate court finds that

the property is not identified, the first appellate court

should have given opportunity to the plaintiffs to

substantiate their case in pursuit of the substantial R.S.A.No.834 of 2018

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justice. Learned counsel for the appellants further

contended that the defendant deliberately did not

mount the witness box and adduce evidence. Under

such circumstances, an adverse inference has to be

drawn against him. The learned counsel further

pleaded that the defendant trespassed into the

property, ignoring the temporary injunction granted by

the trial court and later on, set up a plea of adverse

possession.

8. It is settled position of law that in a suit

for putting up a boundary, it is not boundary of the

plaintiffs alone that is to be fixed. It is the boundary

between the properties of the plaintiffs and the

defendant that is to be fixed. Consequently, it is

necessary on the part of the plaintiffs to schedule both

the properties of the plaintiffs and the defendant in R.S.A.No.834 of 2018

..10..

the plaint. Since the property of the defendant was

not scheduled, the trial court dismissed the suit

following the decision of this Court in Nandakumara

Varma & Another v. Usha Varma and another [(2015 (1)

KLJ 73). The plaintiffs have not chosen to file an

appeal challenging the fixation of boundary. In fact,

the suit was decreed in part declining the prayer for

fixation of boundary. Despite the fact that the suit

was dismissed, the trial court granted a decree for

declaration of title and recovery of possession based

on Ext.C2(a) plan prepared by the surveyor, who was

appointed to measure out the property with the

assistance of an Advocate Commission. In this

connection, it is pertinent to note that Ext.C2(a) plan

was prepared by the Commissioner with the assistance

of surveyor. In the suit, the property of the defendant R.S.A.No.834 of 2018

..11..

was not scheduled as held in Nandakumara Varma's

case (supra). When the boundary between the

properties of the plaintiff and the defendant cannot be

fixed, without scheduling the property of the

defendant, it was perfectly legal on the part of the first

appellate court in holding that the decree for

declaration of title and recovery of possession, without

fixing the boundary between the property of the

plaintiffs and defendant, is improper. In this

connection, it is pertinent to note that Ext.C2(a) plan

was prepared without measuring the property of the

defendant allegedly obtained under Ext.A1. The

parties are siblings and they are tracing title from the

common ancestor. Nowhere in Ext.C2(a), it is stated

that the property of the defendant was measured in

accordance with Ext.A1 title deed.

R.S.A.No.834 of 2018

..12..

9. In a suit for declaration of title, putting up

the boundary and consequential injunction, it is the

duty of the plaintiff to prove his title to the property

before court. Weakness of the defendant is not a

ground to get a decree in favour of the plaintiffs. The

defendant contended that the plaintiffs have no

property comprised in Sy.No.361/2. In view of the

circumstances, it is necessary on the part of the

plaintiffs to prove 52 cents of land owned by the

original owner, who was the mother of the plaintiff and

defendant respectively. Out of the 52 cents, the

mother assigned 10 cents of land to the defendant and

remaining property was assigned jointly to the

plaintiffs as per Ext.A1 settlement deed. In view of

the circumstances, it is necessary to locate the entire

52 cents based on Ext.A1 title deed scheduling the R.S.A.No.834 of 2018

..13..

property of the defendant as well. It was not done.

Under such circumstances, the main relief for fixation

of boundary was declined by the trial court. It is not

logical to declare title of the plaint schedule property

on the strength of Ext.C2(a) plan or recovery of the

plaint 'B' schedule property allegedly trespassed by

the defendant. The alleged encroached portion of the

plaint 'A' schedule property, which is scheduled as

plaint B schedule property can be identified only if the

property of defendant is scheduled. In view of the

above circumstances, the first appellate court set

aside the judgment and decree of the trial court. The

findings are legal and proper, particularly the plaintiffs

in this case have not chosen to challenge the decree

that went against them before the trial court. To that

extent, the decree has become final. Hence, the R.S.A.No.834 of 2018

..14..

question of putting up a boundary and alignment

thereof cannot be reagitated in the second appeal.

The finding of the trial court, which has become final,

debars the plaintiff to take such a contention before

this Court under the general principles of res judicata.

The finality attained cannot be challenged in second

appeal.

10. The second appeal is not a matter of

right. A second appeal only lies on a substantial

question of law under Section 100 of the Code of Civil

Procedure. Where the legal position is clear either on

account of express provisions of law or binding

precedent, generally, the High Court does not interfere

with the finding of the final court of facts in second

appeal. The first appellate court decided the claim of

the plaintiffs on the strength of its case and not on the R.S.A.No.834 of 2018

..15..

weakness, if any, of the defendant's case. No

substantial questions of law are involved in this second

appeal.

Resultantly, this Regular Second Appeal is

dismissed. Considering the facts and circumstances,

there will be no order as to costs. Pending

applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE

MBS/