Kerala High Court
Jasmin vs Vikraman on 2 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
RSA NO. 1084 OF 2010
AGAINST THE JUDGMENT IN AS 49/2004 OF ADDITIONAL DISTRICT COURT-I,
MAVELIKKARA
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APPELLANT/APPELLANT/PLAINTIFF:
JASMIN,
AGED 43 YEARS,
D/O.AISHA BEEVI,VARIKKAPLACKAL VEEDU, NANNUVAKKADU MURI,
PATHANAMTHITTA VILLAGE.
BY ADVS.
SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SMT.A.M.FASEENA
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 VIKRAMAN,
AGED 46 YEARS,
PRADEEP BHAVAN,PEROORKARAZHMA MURI, THAMARAKULAM VILLAGE,
PIN-690 530.
2 CHELLAMMA, (DIED LRS IMPLEADED)
W/O.VIKRAMAN, PRADEEP BHAVAN, PEROORKARAZHMA MURI,
THAMRAKULAM VILLAGE, PIN-690 530.
* ADDL. APPELLANTS 3 AND 4
ADDL.A3 PRADEEP,
AGED ABOUT 45 YEARS, S/O.CHELLAMMA AND VIKRAMAN, PRADEEP
BHAVAN, PEROORKARAZHMA MURI, THAMRAKULAM VILLAGE,
PIN-690 530.
ADDL.A4 DEEPA,
AGED ABOUT 35 YEARS, D/O.CHELLAMMA AND VIKRAMAN, PRADEEP
BHAVAN, PEROORKARAZHMA MURI, THAMRAKULAM VILLAGE,
PIN-690 530.
RSA NO. 1084 OF 2010 -2-
* (THE LEGAL HEIRS OF DECEASED SECOND RESPONDENT ARE IMPLEADED AS ADDITIONAL
RESPONDENTS 3 AND 4 AS PER ORDER DATED 14.02.2020 IN IA.1340/2018.)
BY ADVS.
SRI.S.ARAVIND
SRI.K.SASIKUMAR
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
02.12.2022, ALONG WITH RSA.1085/2010, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
RSA NO. 1085 OF 2010
AGAINST THE JUDGMENT IN AS 28/2004 OF ADDITIONAL DISTRICT COURT-I,
MAVELIKKARA
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APPELLANTS/RESPONDENTS/DEFENDANTS:
1 AISHA, AGED 70, AISHA MANZIL, PUTHUPPALLIKUNNAM MURI,
NOORANADU VILLAGE, MAJEED, AGED 50, -DO-
2 MAGEED AGED 50 -DO- -DO-
BY ADVS.
SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SMT.A.M.FASEENA
RESPONDENTS/APPELLANTS/PLAINTIFFS:
1 VIKRAMAN, AGED 46, S/O AIYYAPPAN,
PRADEED BHAVANAM, PERRORKARAZHMA MURI, THAMARAKULAM VILLAGE-
690 530.
2 CHELLAMMA, AGED 44, -DO- -DO-
BY ADVS.
SRI.S.ARAVIND
SRI.K.SASIKUMAR
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
02.12.2022, ALONG WITH RSA.1084/2010, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
RSA Nos.1084 & 1085 of 2010
= = = = = = = = = = = = = = = = = =
Dated this the 2nd day of December, 2022
J U D G M E N T
RSA No.1084/2010 arises from OS No.2/1999 filed by
the appellant herein as plaintiff. The suit is one for
declaration of title and possession, for mandatory
injunction to restore a fence, and for prohibitory
injunction against trespass. The suit was concurrently
dismissed by the courts. RSA No.1085/2010 arises from OS
38/1998 filed by the respondents as plaintiffs against
the appellant as defendants. The suit is one for
prohibitory injunction against trespass. The suit though
dismissed by the trial court was decreed in appeal.
2. OS No.2/1999 being one on title was taken as the
leading case by the courts. For the sake of convenience,
hereinafter, the parties are referred to according to
their status in OS No.2/1999.
RSA Nos.1084 & 1085 of 2010
3. The plaintiff claims title and possession over
the plaint schedule 47 cents as per Ext.A1 Gift Deed of
the year 1976 executed by her mother's sister. The
plaint schedule property is lying in an almost 'L'
shape. Between the arms of 'L' is the property of the
defendants. The plaintiff alleges that the defendants
are attempting to trespass into the plaint schedule
property and that in the attempt, a portion of the fence
have been destroyed.
4. The defendants on the other hand allege that,
they obtained title and possession to the plaint
schedule property in OS No.38/1998 having an extent of
6.60 Ares (16.30 cents approx.) under Ext.B1 Sale Deed,
and that the plaintiff is attempting to trespass into
the said property.
5. Heard learned counsel on either side on the
following substantial questions of law :-
(i) The basic document of title of the defendant being
assignment of 'kudikidappu' in a OA proceeding, is he entitled
RSA Nos.1084 & 1085 of 2010
to claim that he had been and is in possession of any extent in
excess of 10 cents?
(ii) In the absence of a fixed boundary separating the
plaintiff's property from the defendants property at the
northern limb of the horizontal arm of 'L' shape, was it not
obligatory on the plaintiff to have got prepared a survey
sketch through Commissioner, based on Ext.A1?
6. The plaint schedule property in both the suits
originally belonged to the plaintiff's family. The
defendant and others were 'kudikidappukars' in the
larger extent of property. The 'kudikidappu' right of
the defendant's father Ayyappan was recognized and
assigned as per proceedings in OA 13/1970. The
description of the property in Ext.A1 Gift Deed in
favour of the plaintiff mentions about the 'kudikidappu'
right granted in favour of the defendant's father
Ayyappan. Though in the schedule description to Ext.A1
his name is mentioned as Koran Mathai, DW1 in cross-
examination has admitted that 'Ayyappan' was also known
RSA Nos.1084 & 1085 of 2010
as 'Koran Mathai'. DW1 further admitted that the
predecessor got 'kudikidappu' right under the
plaintiff's family and that the 'kudikidappu' was for an
extent of 10 cents. Therefore, the defendant is not
entitled to claim that he was in possession of anything
in excess of 10 cents. However, the plaint schedule in
OS 38/1998 is described as 6.60 Ares equal to 16.30
cents. The defendants claim is based on the schedule
description in Ext.B1 which purports to convey 10 cents
and 'excess land'. The said inclusion of 'excess land'
in Ext.B1 will not give any right or possession to the
defendants. As noticed above, the defendant cannot claim
anything in excess of 10 cents. The approach of the
first appellate court in having proceeded to find
possession referring to survey sub-divisions is
evidently erroneous. Possession could not have been
ascertained with reference to any survey sub-divisions
especially when the properties were not even measured or
identified in the suit with reference to survey. Suffice
RSA Nos.1084 & 1085 of 2010
to hold that, the defendant cannot claim any property in
excess of 10 cents granted to the defendant's
predecessor in OA 13/1970. Substantial question of law
No.(i) is answered accordingly.
7. Though the plaintiff alleges that out of the 'L'
shaped portion, the northern boundary of horizontal limb
of 'L' shape was attempted to be trespassed into by the
defendant and part of the fence was destroyed, there is
no evidence to show that there existed a fence at that
place. Of course, the Commissioner would report the
existence of a row of trees indicating that to be the
boundary. However, that does not entitle the plaintiff
for a decree for mandatory injunction as sought for. In
the circumstances as above, for a final resolution of
the disputes involved, it is only deemed appropriate
that a survey plan be prepared showing the boundary
separating the properties of the plaintiff and the
defendants. The matter needs to be remanded back for the
said purpose. Substantial question of law No.(ii) is
RSA Nos.1084 & 1085 of 2010
answered accordingly.
8. Accordingly, RSA No.1085/2010 is allowed. The
decree and judgment in A.S. No.28/2004 which arises from
OS 38 of 1998 is set aside. The suit O.S.38 of 1998 will
stand dismissed. RSA No.1084/2010 is allowed. The decree
and judgment of the courts below are set aside. The suit
O.S.2 of 1999 is remanded back to the trial court for
disposal denovo. Plaintiff shall be permitted to amend
the plaint if they deem so. Needless to say that in such
event, opportunity shall be given to the defendants to
file additional written statement. Parties shall be
permitted to adduce further evidence.
Parties to appear before the trial court on
22.12.2022.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
