Kerala High Court
Parvathi (Died,Lr Recorded) vs Thankappan on 9 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945
RSA NO. 71 OF 2018
AGAINST THE JUDGMENT AND DECREE IN A.S.NO.224/2012 OF ADDITIONAL
DISTRICT COURT, IRINJALAKUDA
AGAINST THE JUDGMENT AND DECREE IN O.S.NO.51/2010 OF PRINCIPAL SUB
COURT,IRINJALAKUDA
APPELLANTS/RESPONDENTS/PLAINTIFFS/COUNTER CLAIM DEFENDANTS:
1 PARVATHI (DIED,LR RECORDED)
AGED 70 YEARS
PERINJANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR.
2 SHANTHABAI D/O. PARVATHY, ERUMATHURUTHY HOUSE
AGED 50 YEARS
PERINJANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR.
(IT IS RECORDED THAT APPELLANT NO.1 EXPIRED AND APPELLANT
NO.2 IS RECORDED AS THE LEGAL REPRESENTATIVE OF A1 AS PER
ORDER DATED 03.01.2024 VIDE MEMO DATED 03.01.2024)
BY ADV G.SREEKUMAR (CHELUR)
RESPONDENT/APPELLANT/DEFENDANT/COUNTER CLAIM PLAINTIFF:
THANKAPPAN
AGED 62 YEARS,S/O.KIZHAKEDATH VELAYUDHAN,
PERINJANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR,REP. BY
HIS POWER ATTORNEY HOLDER AND HIS WIFE
REMA,W/O.THANKAPPAN, PERINJANAM VILLAGE, KODUNGALLUR
TALUK, THRISSUR-680 001
BY ADV SRI.K.G.BALASUBRAMANIAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
23.01.2024, THE COURT ON 9.2.2024 DELIVERED THE FOLLOWING:
RSA NO. 71 OF 2018 2
JUDGMENT
Dated this the 9th day of February, 2024
Plaintiffs in O.S.No.51/2010 on the files of the
Principal Sub Court, Irinjalakuda, have preferred this
appeal under Section 100 r/w Order XLII Rule 1 of the
Code of Civil Procedure, challenging the decree and
judgment in A.S.No.224/2012 on the files of the Additional
District Court, Irinjalakuda, dated 15.9.2017, arose out of
O.S.No.51/2010.
2. The sole respondent is the defendant in the suit.
3. Heard the matter in detail on substantial
questions of law framed by my learned predecessor, as per
order, dated 16.1.2018, as under:
"1. Is it not an accepted principle in law, in
the absence of there being any prayer for
recovery of possession on the strength of
title, that no fixation would be had by
taking the fixation to be a short cut
method of obtaining property which is
impermissible in law?
2. Is it not case where the lower appellate
court has acted with material illegality
and irregularity thus having substantial
questions of law to be determined by this
Hon'ble Court? How could the lower
appellate court grant a permanent
prohibitory injunction against the
appellants over the way in question ?"
4. I shall refer the parties in this appeal as
'plaintiffs' and 'defendant', for convenience.
5. A suit, seeking permanent prohibitory injunction
was filed by the plaintiffs, restraining the defendant from
trespassing upon the plaint schedule property and to
widen the 3 ft. width pathway available through the
western side of the same. According to the plaintiffs,
plaintiffs are the owners of the plaint A schedule property
and the defendant has no manner of right over the same,
so as to widen the pathway on the western side.
6. Defendant filed written statement along with
counter claim. The width of the pathway, as contended as
3 ft. on the western side, was denied on the specific
contention that the width of the pathway is 8 ft.
Measurement of both items of properties with the help of
Surveyor, fixation of boundary of the plaint schedule
property with that of the counter claim schedule property
also was sought for. It is contended in the counter claim
that the defendant has right to recover the encroached
portion and further, the defendant has apprehension of
encroachment over the 8 ft. pathway available.
Accordingly, apart from the relief of fixation of boundary,
recovery of possession, on the allegation that a portion of
the counter claim schedule property was encroached upon
by the plaintiffs and also prohibitory injunction against
trespass upon the counter claim schedule property, were
sought for.
7. The trial court raised necessary issues and
recorded evidence. PW1 and PW2 were examined and
Exts.A1 to A3 were marked on the side of the plaintiffs.
DW1 and DW2 were examined and Exts.B1 and B2 were
marked on the side of the defendant. Exts.C1 and C2
series also were marked.
8. On appreciation of evidence after addressing the
rival claims, the learned Sub Judge dismissed the suit and
partly allowed the counter claim and thereby, the plaintiffs
and their men were restrained from trespassing to 8 ft.
width counter claim way and causing obstruction to the
peaceful use of the same or by reducing the width of the
same, in any manner.
9. Challenging the above verdict, the defendant
filed A.S.No.224/2012 before the Additional District Court,
Irinjalakuda. The learned Additional District Judge heard
the matter and allowed the appeal in part as under:
"In the result, the appeal is allowed in part.
The judgment and decree passed in the suit
remains unaltered. The judgment and decree
passed in the counter claim in O.S.51/2010 is set
aside. The eastern boundary of the counter
claim schedule property and the western
boundary of the plaint schedule property are
fixed in accordance with the boundaries shown
in Ext.C2(a) sketch. Commission report and
sketch shall form part of the decree. The
plaintiff is restrained by a permanent
prohibitory injunction from trespassing into the
counter claim property. The prayer for
mandatory injunction is rejected. In the facts
and circumstance of the case there is no order
as to costs."
10. While impeaching the correctness of the verdicts
of the courts below, the learned counsel for the plaintiffs
submitted that, the boundary, as per Ext.C2 (a) sketch,
relied on by the appellate court, is not in serious dispute.
But, according to the learned counsel, there are trees lying
in the plaint schedule property and in view of the verdict
of the appellate court, the plaintiffs would cut and remove
the trees and the same would prejudice the right of the
plaintiffs. It is also submitted that, even though the first
appellate court found apprehension at the instance of the
defendant in the matter of reduction of the way in
existence, the first appellate court and the trial court
failed to appreciate the apprehension of the plaintiffs in
the matter of trespass on the plaint schedule property.
11. Refuting this contention, the learned counsel for
the defendant submitted that, since the appellate court
found that the trees are standing in the way located as per
Ext.C2(a) sketch, the defendant, being the owner of the
counter claim property/way, had got every right to cut and
remove the trees standing in this property and therefore,
the mandatory injunction was disallowed by the first
appellate court. According to the learned counsel for the
defendant, if there is any modification in the verdict of the
appellate court being considered, the same would
prejudice the right of the defendant to remove the trees
situated in the way, as found by the appellate court.
12. While addressing the rival contentions, as per
the plaint description, plaint schedule property is 12 cent
of property and as per Ext.A1 title deed also, the plaint
schedule property is 12 cent. As per the schedule
description in the counter claim, the same is property,
having an extent of 25.5 cent in Re-Sy.No.29/7, covered by
sale deed No.1131/1998. As per Ext.C2(a), the
Commissioner located 25 cent of property as blue shaded
portion, as that of the defendant and on southern side of
the said property, the yellow shaded portion, having an
extent of 12 cent, is located as property of the plaintiffs
and on the western side of the plaintiffs property, rose
shaded portion, having an extent of 1.363 cent and 0.081
cent in red shaded portion jointly located as way claimed
by the defendant. According to the plaintiffs, plaintiffs
perfected title in respect of 12 cent of property, as per
Ext.A1 title deed. The case put up by the defendant by
way of counter claim is that, the plaintiffs sought to fix the
boundary of the counter claim schedule property and
sought recovery of possession also. Further, there was
prayer to demolish the fence put up by the plaintiffs after
encroaching the property of the defendant. As per
Ext.C2(a), the Commissioner located the width of the way
as 2.40 meters on the northern side and 2.50 meters on
the southern side. The length of the rose shaded portion is
located as 23 meters and the length of the red shaded
portion is located as 1 metre on the western side and 1.70
meters on the eastern side.
13. There is no dispute with regard to the location of
the properties based on Ext.C2(a) plan. Therefore,
Ext.C2(a) plan, relied on by the trial court as well as the
appellate court in this matter, is liable to be accepted to
address the controversy.
14. It is to be held that the properties located as per
Ext.C2(a), are the properties of the plaintiffs and the
defendant and the way, as discussed. It is true that the
defendant sought mandatory injunction directing the
plaintiffs to demolish the boundary trees found in the
counter claim pathway. It was observed by the first
appellate court that the defendant did not know, who
planted the trees and nobody could be aware who planted
the same. Accordingly, the first appellate court held that,
it could not be found that the plaintiffs planted the trees
therein. Therefore, the mandatory injunction could not be
allowed and thereby, the first appellate court modified the
decree and fixed the boundary of the properties in tune
with Ext.C2(a) sketch and found that the defendant, being
the owner of the counter claim property, had got every
right to cut and remove the trees planted in the property,
while disallowing the prayer for mandatory injunction.
15. The learned counsel for the plaintiffs argued
that, as per Ext.C1(a) attached to Ext.C1 report, filed for
the first instance as on 6.2.2010, the trees were located in
the property of the plaintiffs and it has been reported by
the Commissioner that, separating the plaint schedule
property with the pathway on the western side, fence
formed of gliricidia sepium trees. In Ext.C2 report, in
paragraph No.5, it is reported by the Commissioner that,
on the western side of the plaint schedule property and on
the eastern side of the counter claim schedule property, 3
coconut trees, having average age in between 25 to 30
years, are standing. It is specified that the above coconut
trees are standing 0.80, 1.30 and 1.6 metre away from the
eastern boundary of the counter claim schedule property
and on the western boundary of the plaint schedule
property.
16. On perusal of Ext.C1 report and Ext.C1(a) rough
sketch, it would appear that the coconut trees are
standing in the property of the plaintiffs and not in the
counter claim schedule property.
17. In this matter, the substantial question of law
raised is, without there being any prayer for recovery of
possession on the strength of title, whether fixation to a
short cut method of obtaining property, though the same is
impermissible in law? In this matter, as per Ext.C2 report,
no encroachment found and accordingly, the
Commissioner reported the boundary in existence and also
found that the respective properties are in possession of
the plaintiffs and the defendant. Therefore, the facts of
the present case do not suggest that, this is a case, where
a suit was filed without recovery of possession or fixation
of boundary. So, the first question of law raised has no
relevance in this particular case.
18. Regarding the second question of law, the same
is to the effect that, how could the lower appellate court
grant permanent prohibitory injunction against the
plaintiffs over the way in question? In the instant case, as
I have already pointed out, plaintiffs filed the suit,
apprehending trespass upon their property by the
defendant for the purpose of widening the pathway on its
western side. The defendant filed suit for fixation of
boundary, recovery of possession and prohibitory
injunction.
19. The trial court and the appellate court
considered the rival claims, but failed to appreciate the
case of the plaintiffs as well as the defendant in the right
perspective. In this case, as per Ext.C2(a) plan, as I have
already pointed out, the property of the plaintiffs is 12
cent of property, located as yellow shaded plot. As far as
the said identification is concerned, the defendant has no
dispute. The blue shaded portion, having an extent of 25
cent, is the property of the defendant and 1.363 cent rose
shaded portion + 0.081 cent red shaded portion together
is the way claimed by the defendant. Therefore, in order to
redress the grievance of the parties, the verdicts of the
trial court and the appellate court require interference,
after setting aside the same.
In the result, this Regular Second Appeal is allowed.
The decree and judgment of the trial court as well as the
appellate court, stand set aside and the suit and counter
claim are decreed as under:
i. The defendant, his men and agents are
restrained from trespassing upon the plaint schedule
property located as yellow shaded portion, having an
extent of 12 cent in Ext.C2(a) plan, in any manner, so as to
obstruct the use and enjoyment of the same by the
plaintiffs.
ii. The plaintiffs/counter claim defendant, are
restrained from encroaching upon the blue shaded portion,
having an extent of 25 cent, rose shaded portion, having
an extent of 1.363 cent and the red shaded portion 0.081
cent in Ext.C2(a) plan, in any manner, so as to obstruct the
use and enjoyment of the same by the defendant.
iii. Since it is discernible from evidence that,
coconut trees are lying inside the plaint schedule property,
the same shall be kept intact and the defendant has no
manner of right to cut and remove the same. At the same
time, both parties are at liberty to cut and remove the
trees, if any, standing in the properties, as shown in
Ext.C2(a) plan, as discussed hereinabove.
iv. Considering the nature of contentions, parties
are directed to suffer their respective costs.
Registry is directed to inform this matter to the trial
court as well as the appellate court, forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
