Surendra Pai vs Venkiteswaran
2022 Latest Caselaw 10324 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE K. BABU
     FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                       RSA NO. 587 OF 2003
AGAINST THE JUDGMENT IN AS 94/2001 OF PRINCIPAL SUB COURT, KOCHI
        OS 302/1993 OF ADDITIONAL MUNSIFF'S COURT, KOCHI
APPELLANT/DEFENDANT:

     SURENDRA PAI, WRONGLY SHOWN AS SURENDRAN PAI
     S/O.GUNA PAI, C.C.X/322, AMARAVATHY, NEAR HANUMAN KOVIL,
     FORTKOCHI VILLAGE, KOCHI TALUK, AT PRESENT RESIDING AT
     C.C.NO.10/334, DURGA BUILDINGS, AMARAVATHY, FORT KOCHI
     VILLAGE, KOCHI TALUK.

       BY ADVS.SRI.DINESH R.SHENOY
       SRI.JOJO GEORGE
RESPONDENTS/PLAINTIFFS:

    1. VENKITESWARAN, DIED, LEGAL REPRESENTATIVES 2 TO 4.
1




    2. VIJAYALAKSHMI, W/O.RAJAN, HOUSE NO.C.C.10/340,
      AMARAVATHY, COCHIN-1, FORT COCHIN VILLAGE, KOCHI TALUK.

    3. RADHA ALIAS HEMA, W/O.VENKITESWARAN, HOUSE WIFE,
        RESIDING AT C.C.NO.10/338, AMARAVATHY, DO. DO. (DIED)

    4. SINDHU, D/O.VENKITESWARAN, RESIDING AT DO.         DO.

    5. PRESANT, AGED 21, S/O.VENKITESWARAN,      DO.    DO.

       (RESPONDENT NOS.4 AND 5 ARE RECORDED AS THE LEGAL
       HEIRS OF DECEASED 3RD RESPONDENT AS PER ORDER DATED
       18.06.2020 IN I.A.NO.2/2020.)

         BY ADV SMT.VANAJA MADHAVAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
07.10.2022,     THE   COURT   ON   THE   SAME   DAY    DELIVERED   THE
FOLLOWING:
 R.S.A.No.587 of 2003                 2




                               JUDGMENT

This Regular Second Appeal arises from the judgment dated

18.01.2003 passed by the Principal Subordinate Judge's Court, Kochi

in A.S.No.94 of 2001. The Appeal Suit arose from the judgment dated

19.5.2001 in O.S.No.302 of 1993 passed by the Additional Munsiff's

Court, Kochi. The defendant is the appellant.

2. Material facts relevant for the adjudication of this appeal are

as follows:-

2.1. Plaint `A' schedule property is owned and possessed by

plaintiff No.1. Plaintiff No.2 is the owner in possession of plaint `B'

schedule property. Plaint `A' and `B' schedule properties, comprised

in Survey No.727/A of Fort Kochi Village, are lying contiguously.

Plaint `C' schedule property is a portion of `A' and `B' schedule

properties upon which the defendant encroached. The defendant has

property on the immediate north of plaint `A' and `B' schedule

properties.

2.2. According to the plaintiffs, the defendant has no right to put

up the northern wall of the properties that belong to the plaintiffs. The

right to construct, maintain and protect the northern and eastern walls

of the properties is with the plaintiffs as per the usage and custom.

Though the plaintiffs resisted, the defendant unauthorisedly put up a

wall on the northern boundary of `A' and `B' schedule properties.

The plaintiffs are entitled to prohibitory and mandatory injunctions to

demolish and remove the wall put up by the defendant over `C'

schedule property.

2.3. The defendant resisted the claim of the plaintiffs. According

to him, the description and extent of the property mentioned in the

schedule are incorrect. The southern boundary wall of the property of

the defendant belongs to him. The defendant has the right to

construct and maintain his southern boundary wall, which is situated in

Survey No.725/1 of Fort Kochi Village. The plaintiffs have no right

over the southern boundary wall of the defendant's property. The

custom, usage etc., as pleaded by the plaintiffs, are without any

foundation. The defendant has not made any construction

unauthorizedly, as pleaded by the plaintiffs.

3. During the trial, PWs 1 to 3 were examined and Exts.A1 to A5

were marked on the side of the plaintiffs. On the side of the defendant

DW1 was examined and Exts.B1 to B6 were marked. Exts.C1 and C2

series were marked as Court exhibits.

4. The suit was originally decreed in favour of the plaintiffs,

which was challenged in A.S.No.27 of 1995 before the Principal

Subordinate Judge's Court, Kochi. The First Appellate Court remanded

the suit for fresh disposal with a direction to take out a Commission for

the measurement and identification of the properties in dispute.

Exts.C2 series report, plan etc. were prepared after the remand of the

matter.

5. The trial Court decreed the suit granting prohibitory and

mandatory injunctions against the defendant in respect of the plaint

schedule properties. The defendant again challenged the decree of the

trial Court in A.S.No.94 of 2001. The First Appellate Court confirmed

the decree of the trial Court. The defendant is before this Court under

Section 100 of CPC.

6. After hearing both sides, this Court re-formulated the

substantial question of law as follows:-

"Is not Ext.C2(a) plan relied on by the Courts below incomplete as it does not contain the requirements to identify the properties and re-fix the same."

7. Heard Sri.Dinesh R Shenoy, the learned counsel for the

appellant/defendant and Smt.Vanaja Madhavan, the learned counsel

appearing for the respondents/plaintiffs.

8. The case of the plaintiffs is that they are the absolute owners

in possession of `A' and `B' schedule properties comprised in Survey

No.727/A of Fort Kochi Village. According to the plaintiffs, they have

the right to construct and maintain the northern boundary wall of the

plaint schedule properties. The plaintiffs pleaded that the defendant

who has property on the immediate north of `A' and `B' schedule

properties encroached upon the property in Survey No.727/A and

unauthorizedly constructed a boundary wall. Therefore, the plaintiffs

prayed for a prohibitory injunction as well as mandatory injunction to

demolish the boundary wall on the north of `A' & `B' schedule

properties.

9. The challenge of the defendant is that the boundary wall on

the south of his property belongs to him and he has the right to

construct and maintain it. According to the defendant, he has not

made any unauthorized construction as pleaded. The defendant has

raised a contention that the description of the plaint `A' and `B'

schedule properties is erroneous and misleading.

10. The plaintiffs have essentially prayed for a mandatory

injunction directing the defendant to demolish the boundary wall

situated on the north of `A' and `B' schedule properties. In such a

suit, the plaintiffs must establish the cause of action in respect of the

property in question wherefrom the relief of mandatory injunction has

been claimed. If a decree is passed in favour of the plaintiffs, the

Execution Court must be able to execute the decree for which the

property in dispute must be adequately identifiable.

11. On the question of the identity of the property, the finding of

the trial Court reads thus:-

"Even though the correct location of 130 sq. links (encroached property) is not shown in Ext.C2 commissioner's report ................ the plaintiffs are entitled to get the removal of construction made in 130 sq. links comprised in Sy.No.727-A which belongs to the plaintiffs. The plaintiffs are entitled to get mandatory injunction for causing removal of unauthorised construction in 130 sq. links of land mentioned in Ext.C2(a) plan.

....................................... For this purpose, the plaintiffs can rely on Ext.C2(a) plan. The plaintiffs can take out appropriate steps for execution. .... for removal of the unauthorised construction."

The Courts below relied on Ext.C2(a) plan to grant the relief of

mandatory injunction. The Courts below concluded that the defendant

encroached upon 130 sq. Links of property in `A' and 'B' schedule

properties. But, the Courts below added that the correct location of

the property encroached upon could not be identified.

12. As mentioned above, the Courts below had relied on

Ext.C2(a) plan for the purpose of identification of the property and

consequently to grant a decree in favour of the plaintiffs. Ext.C2(a)

plan is admittedly a field measurement sketch (FM Sketch). The plaint

`A' and `B' schedule properties have not been located in Ext.C2(a)

plan. The Commissioner has identified a yellow shaded strip of land on

the south of the property of the defendant as the property encroached

upon. Strangely enough, the Commissioner has located this yellow

shaped strip of land in Ext.C2(a) plan without identifying `A' and `B'

schedule properties. In the plan, even in respect of the defendant's

property, which was identified by the Commissioner, there are only `F-

lines'. The plan does not contain `G-line', `Check-line', 'Offset'

measurements etc. 'Ladder' is also lacking in the plan. This Court had

an opportunity to consider the requirements of a plan which is

complete and self-explanatory in Sabu v. Sasi and Others (2022 (2)

KHC 4355) wherein this Court held thus:-

"15. The principle of 'Chain surveying' is to divide the field into a framework of triangles. The sides of a triangle are measured directly in the field. Each field is divided into triangles by chaining lines called Diagonal or Check-lines from tri-junction to tri-junction and the Offsets taken from G-line or Check-line to the bend points.

16. The Amicus Curiae submitted that Ext.C3(a) plan is styled as a field measurement sketch (FM Sketch). An FM Sketch shall contain 'F-line', 'G-line', 'Check-line' and 'Offset' measurements. The 'G-line' measurements, 'Check-line' measurements and 'Offset' are entered in the 'Ladder' in the FM sheet. In addition, the direction of adjoining field boundaries and adjoining survey numbers are entered on the sides of the field. 'Ladder' is necessary to plot the field and verify the area of the field. It is impossible to plot and calculate the area or re-fix the field

with the aid of boundary measurements (F-lines) only. To re-fix the field 'G-lines', 'Check-lines', 'F-lines' and 'Offsets' are required. A survey plan becomes complete and self explanatory only when it contains the requirements mentioned above.

17. Ext. C3(a) plan contains only 'F-lines', which cannot be used to find the area of any of the properties described therein and to identify the boundaries of the properties. Ext. C3(a) plan relied on by the Courts below has not been prepared following the requirements mentioned above. It is impossible to ascertain how 'C' schedule property was identified as 617 sq. links by the surveyor from Ext. C3(a) Survey Plan. 'G-line', 'F-line', and 'Sub-Divisional Lines' are necessary for plotting and re- fixing the boundary of a property and 'Check-line' and 'Ladder' are necessary for computing the area of the property surveyed. Ext. C3(a) plan, which is made part of the decree is not useful to find the area of the property depicted therein and to fix the boundaries of the property."

13. I have carefully gone through Ext.C2(a) plan. This plan is

not useful to identify the properties in question. The plan is

incomplete in all respects. It is not self-explanatory. The plan does

not contain the essential requirements for the identification of the

properties. The resultant conclusion is that there had not been

effectual adjudication of the dispute in the Courts below as

identification of the properties was vital as far as the reliefs prayed for

are concerned. The trial Court as well as the First Appellate Court

ignored the essential requirements of the identification of the

properties before granting a decree in respect of the properties in

dispute. This has caused prejudice to the defendant.

14. The Apex Court in Shankararamiah. A v.

M.S.Lakshminarayanamoorthi and others [2016 (5) KHC 87],

has explained the circumstances under which an order of retrial after

remand could be made by the Appellate Court in cases where there

had already been a trial. The Apex Court held that an order remanding

a proceeding may ordinarily be made when the Trial Court has decided

the case on a preliminary point and the Appellate Court reverses the

decision of the Trial Court. An order of retrial after remand may also

be made in exercise of the inherent jurisdiction of the Court where the

Court of appeal is satisfied that there has been no proper trial or no

complete or effectual adjudication of the proceeding and the party

complaining of the error or omission or irregularity has suffered

material prejudice on that account. Such an order may also be made

to prevent abuse of the process of Court. A trial de novo, after setting

aside a final order passed by the Court of first instance may therefore

be made in exceptional circumstances, where there has been no real

trial of the proceeding, or where allowing the order to stand would

result in abuse of the process of Court, the Apex Court held.

15. In the present case, there has not been complete or effectual

adjudication of the proceedings in so far as identification of the

properties in dispute is concerned. The Courts below granted a decree

in favour of the plaintiffs ignoring the vital aspects of the identification

of the properties even though the question of identification was raised

by the defendant at the earliest opportunity. The necessary conclusion

is that there has not been a proper trial thereby the

appellant/ defendant has suffered material prejudice.

16. The upshot of the above discussion is that the Original Suit

is liable to be remanded to the Court below for trial afresh. The

judgments impugned are liable to be set aside.

17. In the result,

(1) The Regular Second Appeal is allowed by way of remand.

(2) The judgment and decree dated 19.5.2001 in O.S.No.302/1993

on the file of the Additional Munsiff's Court, Kochi and the judgment

and decree dated 18.1.2003 in A.S.No.94/2001 on the file of the

Principal Subordinate Judge's Court, Kochi are set aside.

(3) The Original Suit is remanded to the trial Court for disposal

afresh.

(4) The parties are directed to bear their respective costs.

(5) They shall appear before the trial Court on 17.10.2022.

(6) The Trial Court shall dispose of the Original Suit within a period

of three months from 17.10.2022.

The learned counsel for the appellant/defendant has filed

I.A.No.1 of 2022 under Order 41 Rule 27 of CPC seeking admission of

additional evidence. The learned counsel submitted that the defendant

may be given the liberty to produce the documents sought to be

admitted, in the trial Court. Registry shall return the certified copies of

the title deeds produced from the side of the defendant in I.A.No.1 of

2022 for facilitating him to produce them before the trial Court.

Registry shall forthwith transmit the lower court records.

Sd/-

K.BABU Judge

TKS