Kerala High Court
Akhila Kerala Dheevara Sabha vs Rosamma on 7 May, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
R.S.A.No.242 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 7TH DAY OF MAY 2024 / 17TH VAISAKHA, 1946
RSA NO. 242 OF 2020
(AGAINST THE JUDGMENT AND DECREE DATED 08.08.2019 IN
A.S.No.21/2014 ON THE FILE OF SUB COURT, CHERTHALA AND JUDGMENT
AND DECREE DATED 31.01.2014 IN O.S.No.813/2004 OF PRINCIPAL
MUNSIFF COURT, CHERTHALA)
APPELLANTS/APPELLANTS/DEFENDANTS:
1 AKHILA KERALA DHEEVARA SABHA
BRANCH NO.5, THANNEERMUKKOM, REPRESENTED BY ITS
PRESIDENT KAMALOLBHAVAN K. N., THANNEERMUKKOM MURI,
THANNEERMUKKOM NORTH VILLAGE, ALAPPUZHA DISTRICT.
2 AKHILA KERALA DHEEVARA SABHA
BRANCH NO.5, THANNEERMUKKOM, REPRESENTED BY ITS
SECRETARY, P. K. PAVITHRAN, THANNEERMUKKOM MURI,
THANNEERMUKKOM NORTH VILLAGE, ALAPPUZHA DISTRICT.
3 THANNEERMUKKOM PATHAPARAMBU KSHETHRA DEVASWOM
REPRESENTED BY ITS PRESIDENT KAMALOLBHAVAN K. N.,
PUTHUVALNIKARTHIL, THANNEERMUKKOM MURI,
THANNEERMUKKOM NORTH VILLAGE, ALAPPUZHA DISTRICT.
4 THANNEERMUKKOM PATHAPARAMBU KSHETHRA DEVASWOM
REPRESENTED BY ITS SECRETARY, K. SAMBHODHARAN,
MADAYIL VEETIL, THANNEERMUKKOM MURI, THANNEERMUKKOM
NORTH VILLAGE, ALAPPUZHA DISTRICT.
BY ADV C.P.PEETHAMBARAN
RESPONDENTS/RESPONDENTS/LEGAL HEIRS OF PLAINTIFF:
1 ROSAMMA
W/O. P. J. JOSEPH, THUNDATHIL KARIYIL, THANNEERMUKKOM
MURI, THANNEERMUKKOM NORTH VILLAGE, CHERTHALA TALUK,
ALAPPUZHA DISTRICT - 688 555.
R.S.A.No.242 of 2020
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2 MARTIN JOSEPH KARIYIL
THUNDATHIL KARIYIL, THANNEERMUKKOM MURI,
THANNEERMUKKOM NORTH VILLAGE, CHERTHALA TALUK,
ALAPPUZHA DISTRICT - 688 555.
3 MARPHY JOSEPH KARIYIL
THUNDATHIL KARIYIL, THANNEERMUKKOM MURI,
THANNEERMUKKOM NORTH VILLAGE, CHERTHALA TALUK,
ALAPPUZHA DISTRICT - 688 555.
4 RAMSY
W/O. C. V. JOSEPH, CHAMPAPPALLY HOUSE, THALAYAZHAM P.
O., VAIKOM - 686 144.
5 DEEPA
W/O. JOSEPH, CHELLATTU HOUSE, KALARKODE P. O.,
ALAPPUZHA - 688 002.
BY ADVS.
R4 & R5 BY SRI.JOBY CYRIAC
SHRI.KURIAN K JOSE
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 18.12.2023, THE COURT ON 7.5.2024 DELIVERED THE
FOLLOWING:
R.S.A.No.242 of 2020
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T.R. RAVI, J.
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R.S.A.No.242 of 2020
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Dated this the 7th day of May, 2024
JUDGMENT
The defendants in a suit for fixation of boundary, mandatory
injunction, and perpetual injunction, who have lost their cause before
the trial court and the First Appellate Court, have filed this appeal.
Even though notice was ordered on the petition for condonation of
delay and the delay was condoned, the appeal has not so far been
formally admitted after framing any substantial question of law. Since
the appeal has been pending for the past three years, and the
respondents have also appeared, I am proceeding to hear the appeal
finally on the questions of law formulated in the memorandum of
appeal.
2. The plaintiffs trace their title to a Will executed on
19.11.1968 by the grandfather of the original plaintiff. The original
plaintiff died pending suit. The grandfather died on 18.7.1974, six
years after the execution of the Will. It is stated that the properties of
an extent of 79 cents, were purchased by the great grandfather of the
plaintiff, in a court sale. The plaint schedule property of an extent of
39.5 cents is situated on the northern side of the entire extent. The
plaintiff's predecessors released the balance of 39.5 cents on the
southern side to the previous jenmi. As the property on the southern
side had been abandoned for some time, the local residents installed
structures like chitrakoodam and started offering prayers there. It is
stated that some workers of the 1st defendant had reinstalled the idols
in the structures that had been put up by the local residents, which
was completed in December 2003. The plaintiffs contend that while
making the said constructions, the defendants had encroached into
the plaint schedule property, which was the northern half of the 79
cents above mentioned. It is stated that when the plaintiffs objected
to the encroachment, the defendants undertook to remove the same
after a temple is built in the 39.5 cents on the southern side of the
plaint schedule property. It is stated that the temple was inaugurated
in December 2003 and thereafter the plaintiffs demanded in writing to
remove the structures illegally put up. It is contended that the plaint
schedule property is bounded by a lake on the east, a Panchayat road
on the west, and a fencing on the north and that the defendants are
taking advantage of the fact that there is no boundary demarcation
on the southern side. The suit was filed in the above circumstances.
3. The defendants filed a written statement contending that
the original plaintiff was never in possession and enjoyment of the
plaint schedule property, that the plaint schedule property and the
property on the southern side are lying as a single plot, that the
entire properties including the plaint schedule had devolved on the 1 st
defendant through a gift deed No.6484/76 and a Trust Deed
No.5971/77, that right if any of the plaintiffs have been lost by
adverse possession and limitation and that the plaintiffs are not
entitled to the reliefs prayed for.
4. The plaintiffs examined PWs 1 to 7 on their side and
Exts.A1 to A8 were marked in evidence. The defendants examined
DWs 1 to 3 on their side and Exts.B1 to B6 were marked in evidence.
Exts.C1 to C3 are the Commission Reports and Exts.C1(a), C2(a) and
C3(a) are the sketches prepared by the Commissioners.
5. The trial Court considered the evidence on record and
decreed the suit finding that the plaintiffs have title and possession
over the plaint schedule property. A.S.No.21/2014 filed by the
defendants before the Sub Court, Cherthala was dismissed,
confirming the decree granted by the trial Court. Hence the second
appeal.
6. The following substantial questions of law have been
formulated in the memorandum of regular second appeal.
(i). Can a mere suit for Mandatory injunction is maintainable
without a prayer for recovery of possession on the strength of
title of the plaintiff, once title itself is disputed?
(ii). Can a decree of prohibitory injunction can be granted once it
is proved that the defendant is in possession of the property
for a quite long time?
(iii). Once it is admitted that the predecessor in interest of the
plaintiff permitted the defendant to put up structures and
conduct prayers in the property, is not the plaintiff stopped
from recovering the possession without terminating the
arrangement ?
(iv). Is not the plaintiff is liable to prove the Will once the
defendant disputed his title in terms of Indian Succession Act
and Indian Evidence Act?
(v). Once the defendant in specific term contended that the suit is
barred by limitation and also the defendant perfected title by
adverse possession, is not the Court below bound to frame an
issue regarding the plea of adverse possession and limitation?
(vi). Once Ext. C-1(a) plan itself is disputed and challenged by the
plaintiff, can a decree be granted based on Cl(a) plan and the
acceptability of the same is not considered by the Trial Court,
in pursuance of the direction in OP(C)261/2012 of this
Hon'ble Court?
(vii). Once the acceptability of the commissioner's report and plan
is disputed by the plaintiff, can a decree of fixation of
boundary can be granted based on that disputed plan, and
the acceptability of C1(a) C2(a) plans are not finally decided
by the trial Court after taking evidence?
7. The main argument advanced by the counsel for the
appellants is that this is a case where there is denial of title and
possession and hence remedy of the plaintiff was to seek recovery of
possession rather than to file a suit for mandatory and prohibitory
injunction. Reliance is placed on the judgment of the Hon'ble Supreme
Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRs &
Ors. [(2008) 4 SCC 594]. The Honorable Supreme Court had in the
said judgment held that where a cloud is raised over plaintiff's title
and he does not have possession, a suit for declaration and
possession, with or without a consequential injunction, is the remedy;
that where the 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; and where there is merely an interference
with plaintiff's lawful possession or threat of dispossession, it is
sufficient to sue for an injunction simpliciter.
8. The trial court as well as the First Appellate Court have
considered the entire evidence on record and held that the plaintiffs
were entitled to the decree prayed for. The courts below have
considered the contentions of the appellants on the basis of the
documents produced and the oral evidence and found that the
appellants are not disputing the title of the plaintiffs. The documents
Exts.B1 and B2 relied on by the appellants referred only to the
southern side of the entire extent of 79 cents which had been
purchased in court auction by the late grandfather of the original
plaintiff. Thus, documents of title relied on by the appellants hence
do not include the plaint schedule property which is the northern half
of the total extent. The courts below also found that the very fact
that the appellants were contending that they have perfected their
title by adverse possession itself shows that they do not deny the
title. In view of the above facts, I do not think that the dictum laid
down by the Hon'ble Supreme Court in Anathula Sudhakar (supra)
would be applicable in this case. The case on hand is not a case
merely seeking an injunction. It is a case where there is a specific
prayer for fixation of boundary. There is no cloud on title as
contemplated in the judgment aforesaid. It can be seen from the
judgment of the trial court and the First Appellate Court that the title
and possession of the plaintiffs have been clearly found. The specific
case of the plaintiffs is that structures were put up at the time of
renovation and reconsecration of the temple in the property on the
southern side. There is no dispute regarding the renovation and
reconsecration of the temple. It admittedly took place during the
year 2003. The suit is filed in 2004. It is not hence a case of a
settled possession of the defendants warranting a prayer for recovery
of possession, but a mere trespass, which according to the plaintiff
was agreed to be removed after the reconsecration of the temple. I
hence find that there is no requirement for filing a suit for recovery of
possession. The counsel for the appellant relied on the judgment of
this Court in OP(c).No.261 of 2012 which arose at an interlocutory
stage of this litigation. The said original petition was one challenging
the order in I.A.No.3768 of 2011 whereby the learned Munsiff had
found that the objections raised against the report of the
Commissioner can be considered during the trial after the evidence
was adduced. The original petition was dismissed by this Court.
This Court found that the order does not in any manner prejudice the
contentions and it is for the court to decide which is the report and
plan that should be accepted. The above judgment does not in any
manner improve the case of the appellants. It only shows that the
plaintiff had some reservations about the commission report. The
said judgment does not in any manner preclude a decision by the trial
court or the First Appellate Court accepting a report on which the
plaintiff himself had reservations. The counsel for the appellants then
contended that when Ext.C1(a) plan itself is disputed, there cannot be
a decree based on Ext.C1(a) plan particularly since the acceptability
of the same has not been considered by the trial court pursuant to the
directions issued in the judgment in O.P.(C)No.261 of 2012. The
above contention also cannot be sustained since the judgment in the
above said original petition does not specifically direct consideration of
any plan by the trial court. The court only dismissed the original
petition, since the order of the trial court will not prejudice the rights.
The counsel pointed out that under Section 103 of the Code of Civil
Procedure, it is open to this Court to determine an issue of fact on the
basis of the evidence on record and the question of the applicability of
the plan can hence be considered. I do not think that the appellants
can challenge the decree relying on the dispute raised by the plaintiffs
regarding commission report. When the plaintiff himself does not
have any grievance regarding that, it is not open to the defendants to
say that the decree ought not to have been granted on the basis of
Ext.C1(a) plan. There is no necessity to apply the course of action
provided by Section 103 in a case where there is a clear finding on
the facts by the trial court and the first appellate court and there is no
perversity in the findings.
9. The counsel for the respondents/plaintiffs relied on the
judgment of the Hon'ble Supreme Court in Mohan Lal v. Nihal Singh
[(2001) 8 SCC 584] and Dagadabai (Dead) by LRs v. Abbas @
Gulab Rustum Pinjari [(2017) 13 SCC 705] to submit that no
interference is warranted on the concurrent findings of fact in an
injunction suit. Reliance is placed on the judgment of a learned
Single Judge of this Court in Kathirummal Chirammal Karthyayani
v. Kunnool Balakrishnan & Ors. [2014 (2) KHC 108] to submit
that a suit for fixation of boundary is maintainable without a prayer
for recovery of possession. Reliance is also placed on the judgment of
this Court in Davis Raphel v. Hendry Thomas [2021 (5) KHC
443] to submit that on concurrent finding regarding the factum of
possession, no interference is warranted in an appeal under Section
100 CPC. There can be no dispute regarding the law stated in the
said judgments.
10. In view of what is stated above, I find that no substantial
questions of law arise for consideration in this appeal and the
appellants have been made out any grounds for interference with the
decree and judgments of the courts below. The questions posed by
the appellants in this have already been considered by the trial court
as well as the First Appellate Court from the correct perspective and
the judgments of the trial court as well as the First Appellate Court
cannot be held to be perverse in any manner with regard to the
consideration of the evidence on record.
The second appeal fails and is dismissed.
Sd/-
T.R. RAVI
JUDGE
dsn
