Kerala High Court
K.Ramesan vs K.Rathnakaran on 6 March, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA,
1945
RSA NO. 220 OF 2012
AGAINST THE DECREE AND JUDGMENT DATED 29.11.2011 IN AS
NO.130 OF 2008 OF SUB COURT, THALASSERY ARISING OUT OF
THE DECREE AND JUDGMENT DATED 25.03.2008 IN OS NO.376 OF
2003 OF MUNSIFF COURT, THALASSERY
APPELLANTS/APPELLANTS/DEFENDANTS:
1 K.RAMESAN
AGED 49 YEARS
S/O.LATE RAGHAVAN, JANAKI NIVAS,DHARMADAM
AMSOM, PALAYAD DESOM, PALAYAD, THALASSERY
2 K.JANAKI
AGED 70 YEARS
W/O.LATE RAGHAVAN,JANAKI NIVAS,DHARMADAM AMSOM,
PALAYAD DESOM, PALAYAD, THALASSERY(DIED)
IT IS RECORDED THAT SECOND APPELLANT IS NO MORE
AND SHE HAS NO LEGAL HEIRS AS PER ORDER DATEDF
18.01.2013 I.A.NO.1/2023)
3 ALAKKADAN LAKSHMI
AGED 70 YEARS
D/O.MATHU, JANAKI NIVAS,DHARMADAM AMSOM,
PALAYAD DESOM, PALAYAD THALASSERY
BY ADV SMT.M.A. ZOHRA
RESPONDENTS/RESPONDENT/PLAINTIFF:
K.RATHNAKARAN
S/O.LATE GOPALAN, AGED 62 YEARS, K.K.HOUSE,
DHARMADAM AMSOM, PALAYAD, THALASSERY
BY ADV SRI.M.SASINDRAN
R.S.A. Nos. 220 & 955 of 2012
..2..
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 06.03.2024, ALONG WITH RSA.955/2012, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
R.S.A. Nos. 220 & 955 of 2012
..3..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
RSA NO. 955 OF 2012
AGAINST THE DECREE AND JUDGMENT DATED 29.11.2011 IN AS
NO.132 OF 2008 OF THE ADDITIONAL SUB COURT, THALASSERY
ARISING OUT OF THE DECREE AND JUDGMENT DATED 25.03.2008
IN OS NO.151 OF 2002 OF MUNSIFF COURT, THALASSERY
APPELLANT/S:
1 K.JANAKI
AGED 70 YEARS
W/O.RAGHAVAN, JANAKI NIVAS, DHARMADAM AMSOM,
PALAYAD DESOM, PALAYAD P.O., THALASSERY.
2 ALAKKADAN LAKSHMI
AGED 74 YEARS
D/O.MATHU, JANAKI NIVAS, DHARMADAM AMSOM,
PALAYAD DESOM, PALAYAD P.O., THALASSERY.
BY ADV SMT.M.A.ZOHRA
RESPONDENTS/RESPONDENTS/2ND DEFENDANT AND LRS OF 3RD
DEFENDANT:
1 K.RETNAKARAN,AGED 62 YEARS,
S/O.LATE GOPALAN, K.K.HOUSE, DHARMADAM AMSOM,
PALAYAD DESOM, NEAR DIET, P.O.PALAYAD,
THALASSERY-670661.
2 SAINABHA
AGED 64 YEARS
W/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
R.S.A. Nos. 220 & 955 of 2012
..4..
P.O.PALAYAD, THALASSERY-670661.
3 RAHMAN, AGED 43 YEARS
S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
4 RIYAS
AGED 40 YEARS
S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
5 SHAJEER
AGED 37 YEARS
S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
6 SHAMSU
AGED 27 YEARS
S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
7 SHAYINA
AGED 43 YEARS
S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
8 FASILA
AGED 24 YEARS
D/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
9 RASHI
AGED 23 YEARS
S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
BY ADVS.
SRI.M.SASINDRAN
SMT.K.ANILA THIRUVALLA
SRI.ESM.KABEER
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 06.03.2024, ALONG WITH RSA.220/2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. Nos. 220 & 955 of 2012
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K. BABU, J
-------------------------------------------------
R.S.A. Nos. 220 & 955 of 2012
-------------------------------------------------
Dated this the 6th day of March, 2024
JUDGMENT
These Regular Second Appeals arise from the
common judgment and decree passed by the Munsiff's
Court, Thalassery in O.S.Nos. 151 of 2002 and 376 of
2003. Plaintiff Nos. 1 and 2 in O.S.No.151 of 2002 are
the appellants in RSA No.955 of 2012. Defendant No.2
and the legal representatives of defendant No.3 are the
respondents. Defendant Nos. 1 to 3 in O.S.No.376/2003
are the appellants in RSA No.220 of 2012. The sole
plaintiff is the respondent.
2. The parties and the subject matter will
hereinafter be referred to with reference to O.S.No.376 of
2003.
3. O.S.No.376 of 2003 is a suit for injunction.
O.S.No.151 of 2002 is a suit for fixation of boundary and
R.S.A. Nos. 220 & 955 of 2012
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injunction. In O.S.No.376 of 2003, plaint A Schedule
property is described as 10.58 cents of land. The plaint B
Schedule property is described as 11.4 cents of land. The
plaint C Schedule is described as a way. Plaintiff is the
owner of plaint A schedule property. Defendants are the
owners of plaint B Schedule property. Plaint B schedule
property in O.S.No.376/2003 is the plaint schedule
property in O.S.No.151 of 2002. The extent of the plaint
schedule property in O.S.No.151 of 2002 is stated to be
15.25 cents of land.
4. Both the suits were jointly tried. As per
judgment dated 25.03.2008, the Munsiff's Court
dismissed O.S.No.151 of 2002 and decreed O.S.No.376 of
2003. The defendants challenged the common judgment
and decree by filing appeals before the Subordinate
Judge's Court, Thalassery. The decree in O.S.No.376 of
2003 was challenged in A.S.No.130 of 2008. The decree
in O.S.No.151 of 2002 was challenged in A.S,No.132 of
R.S.A. Nos. 220 & 955 of 2012
..7..
2008. The First Appellate Court dismissed both the
appeals. The common judgment and decree passed by the
Munsiff's Court and confirmed by the First Appellate
Court is under challenge in these Regular Second
Appeals.
5. The plaintiff set forth the following pleadings:-
The plaintiff is the absolute owner in possession of
plaint A Schedule property. The defendants are in
possession and enjoyment of plaint B Schedule property.
The plaint C schedule property is part of a road passes
through the further north of plaint B schedule property.
The plant C schedule property is a portion of the public
Road which starts from Thalassery-Meloor PWD road on
the eastern side and runs towards west for a distance of
more than ½ km and reaches the residence of the
plaintiff, defendants and many others. The defendants
have no manner of any exclusive right over C schedule
way. In July, 2002, the defendants made an attempt to
R.S.A. Nos. 220 & 955 of 2012
..8..
encroach upon plaint C schedule property. The plaintiff
and other members of the public prevented the
defendants from encroaching upon the property. After
that, the defendants instituted O.S.No.151 of 2002 for
fixation of boundary and other consequential reliefs
against the plaintiff. The claim of the defendants that
they are in possession of 15.25 cents of land is not true.
The attempt of the defendants is to carve out a portion of
the public way. They have no title over 15.25 cents of
land as claimed by them.
6. The defendants set up the following pleadings:-
The predecessor of the defendants acquired right
over plaint A schedule property having an extent of 15.25
cents of land as per the partition deed No.1318/96 of
SRO, Thalassery. In 1997 the Land Tribunal granted
purchase Certificate in respect of this property. After the
death of Shri. Alakkadan Mathu, the predecessor - in-
interest of the defendants, the defendants are in joint
R.S.A. Nos. 220 & 955 of 2012
..9..
possession of the property. In 1981, the defendants
transferred 4.75 cents of land to one George out of the
total 20 cents covered by document No.1539/81 of SRO
Thalassery. The remaining 15.25 cents of land is the
plaint schedule property in O.S.No.151of 2002. In 1995,
the plaintiff executed an agreement vide document
No.570/1995 of SRO, Thalassery whereby they divided
the plaint schedule property into two portions. 7.50 cents
were given to Devi and Lakshmi and 3.75cents were
given to Janaki and her children. The parties decided to
keep 4 cents of land in common. The northern side of the
property is the campus of DIET. The land on the south of
the property is owned by one Prabhakaran. The land on
the eastern side is in the possession of one Nanu Asari
and the land on the western side is in the possession of
the plaintiff. There was a water passage (thodu) in
between the property owned by the defendants and the
property owned by Nanu Asari. This thodu was the
R.S.A. Nos. 220 & 955 of 2012
..10..
natural boundary of the plaint schedule properties.
Plaintiff filled the water passage in the year 2001 and
fixed a boundary encroaching upon the eastern portion of
the property of the defendants. Defendants had filed a
complaint in this regard before the District Collector.
7. The parties went to trial. Plaintiff No.1 gave
evidence as PW1 and Exts. A1 to A6 were marked on the
side of the plaintiffs. Exts. B1, B2 and B2(a) were marked
on the side of the defendants. Exts.C1 to C6 were
marked as Court Exhibits.
8. After hearing both sides, this Court re-framed
the substantial question of law as follows:-
Have the Courts below drawn necessary
inferences and presumptions based on the
pleadings and evidence?
9. The dispute in these suits centered around the
following questions:-
R.S.A. Nos. 220 & 955 of 2012
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(a) Have the defendants acquired title and possession
over 15¼ cents of land as claimed by them?
(b) Is C schedule way in existence?
(c) Have the defendants any right to trespass upon C
schedule way?
(d) Are the defendants entitled to fixation of boundary as
prayed for?
10. The case of the defendants is that they have
acquired title and possession over 15¼ cents of land.
They relied on Exts. A1 and A6 to substantiate their
contentions. Ext.A1 is a certified copy of the partition
deed No.1318/1996 of SRO, Thalassery. Ext.A1 shows
that C Schedule property therein has been allotted to
Alakkadan Mathu who is the predecessor-in-interest of
the defendants. Ext.A6 is the Purchase Certificate in
respect of the property. Ext.A6 Purchase Certificate
would show that the extent of the property covered by the
Purchase Certificate is 20 cents. The extent of the
R.S.A. Nos. 220 & 955 of 2012
..12..
property covered by Ext.A1 is 15¼ cents. The case of
the defendants is that out of the 20 cents of land devolved
upon them, 4¾ cents were assigned to one George in the
year 1981 as per document No.1539/1981, and in 1994,
with the death of Alakkadan Raghavan, the remaining
property devolved upon them. They have a further case
that the property was partitioned in the year 1995 by
virtue of a partition deed 570/1995. This document has
not been produced from the side of the defendants.
Plaintiff No.1 gave evidence as PW1. He deposed in tune
with the pleadings. On the side of the defendants Exts.B1
to B2(a) were marked. Ext.B1 is a certified copy of the
partition deed No.570/1995. As per Ext.B1 document, the
property is seen divided into two portions. One portion
having an extent of 7½ cents and the other having an
extent 3¾ cents allotted to Janaki. Therefore, the total
extent of the property covered by Ext.B1 is only 11¼
cents. The case of the defendants is that the remaining
R.S.A. Nos. 220 & 955 of 2012
..13..
extent, being 4 cents, has been kept in common by the
plaintiff without partition in the year 1995. Therefore,
they are seeking fixation of boundary in respect of 15¼
cents of land.
10. The specific case of the plaintiff is that the
defendants have no title over 15¼ cents of land. Relying
on Ext.B1, the plaintiff contends that the defendants have
title and possession over only 11¼ cents of land.
11. The commissioner appointed by the Court
visited the property twice and prepared Exts.C1 to C4.
The Commissioner failed to note any signs of trespass as
alleged by the defendants. The Commissioner, after
measuring the property, based on Ext.B1, reported that
he has not seen any encroachment on the western side of
the plaint B schedule property (properties claimed by the
defendants). The Commissioner specifically noted that
the total extent of the property in the possession of the
defendants is 11¼ cents. The Commissioner visited the
R.S.A. Nos. 220 & 955 of 2012
..14..
property on a second time as per the request of the
defendants. The Commissioner measured the property
with the help of field measurement book and title deeds
of the parties and prepared Ext.C4 plan. In Ext.C4 plan,
he has located plot A as the property owned by the
plaintiff and plot B as the properties in the possession of
defendants. The Commissioner noted that plot A has an
extent of 10.58 cents and plot B has 11.4 cents. The
Commissioner also noted the disputed portion as yellow
shaded portion having an extent of one cent. The
defendants admitted that they effected partition in
respect of the property as per deed No.570/95 (Ext.B1).
They claim title over the property as per Ext.A1. The
specific challenge of the plaintiff is that the defendants
have acquired only 11¼ cents of land and they are not in
possession of 15¼ cents of land. PW1 is a signatory to
Ext.B1 document. He would depose that he affixed his
signature in Ext.B1 fully understanding the contents of it.
R.S.A. Nos. 220 & 955 of 2012
..15..
He further stated that he had no dispute regarding the
measurement shown in Ext.B1. PW1 deposed that the
property on the immediate west of the property was
assigned to one Goerge. Ext. B1 shows that the western
boundary of the property belongs to Nani, the mother of
defendant No.2. If the property assigned to George was
on the immediate west of their property, the western
boundary in Ext.B1 should have been shown as the
property belonging to George. The recitals in Ext.B1
would clearly show that the entire property left after the
assignment was partitioned. Ext.B1 is silent regarding
keeping of any portion of the property in common. Ext.B1
makes it clear that the entire property remaining after
the assignment was divided into two portions. Therefore,
the extent of the property partitioned as per Ext.B1 is
only 11¼ cents and not 15¼ cents as contended by the
defendants. The learned Counsel for the respondents,
relying on Anjil Vellachi v. Mamuni Bhaskaran [2009
R.S.A. Nos. 220 & 955 of 2012
..16..
(3) KHC 728], contended that as there is no specific
prayer for declaration and recovery of possession, the
remedy for fixation of boundary cannot be granted.
12. A cloud is cast on the title as claimed by the
defendants. In Anathula Sudhakar vs P. Buchi Reddy
(Dead) By Lrs & Ors [2008 4 SCC 594], the Apex Court
held that where a cloud is raised on plaintiff's title and he
does not have possession, a suit for declaration and
possession with or without a consequential injunction is
the remedy. The Apex Court further held that where
plaintiff's title is not in dispute or under a cloud but he is
out of possession, he has to sue for possession with a
consequential injunction.
13. In the present case, a cloud is raised on the title
of defendants and they are not in possession of the
property claimed by them. Therefore, they are not
entitled to the relief of fixation of boundary. The Trial
Court as well as the First Appellate Court have drawn
R.S.A. Nos. 220 & 955 of 2012
..17..
necessary inferences and presumptions based on the
pleadings and evidence.
14. The plaintiff has prayed for a relief of
permanent prohibitory injunction in respect of plaint C
schedule property. It is claimed that C schedule is a
pathway. The Commissioner has specifically noted C
schedule way on the northern side of the property. PW1
(defendant No.1) would state that a Committee was
formed for the construction of road in the year 2000. He
has also admitted that Ext.B2 is the Minutes Book of the
Committee wherein he had also affixed his signature
which is marked as Ext.B2(a). Exts. C5 and C5(a) report
and plan show that the road has reached the north
eastern boundary of the property of the plaintiff. The
Commissioner also reported that 0.44 cents of land which
is marked as 'DCEF' in Ext.C6 plan is the area
encroached by defendant No.2. The trial Court found
that C schedule way is in existence and that the
R.S.A. Nos. 220 & 955 of 2012
..18..
defendants have no exclusive right over the same.
Therefore, the Trial Court granted permanent prohibitory
injunction in favour of the plaintiff in respect of C
schedule way.
15. The findings recorded by the Trial Court and
confirmed by the First Appellate Court do not require any
interference. The substantial question of law is therefore
answered against the appellants.
The Regular Second Appeals are dismissed.
Sd/-
K.BABU, JUDGE
kkj
