Kerala High Court
S.Navas vs K.P.Jawahar on 22 May, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
RSA No.843 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
RSA NO. 843 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 10.11.2021 IN AS NO.31 OF
2018 OF SUB COURT,KOTTARAKKARA ARISING OUT OF THE JUDGMENT AND
DECREE DATED 26.02.2018 IN OS NO.31 OF 2012 OF MUNSIFF COURT,
KOTTARAKKARA
APPELLANT/1ST RESPONDENT/PLAINTIFF:
S.NAVAS
SON OF SAINULABDEEN, THACHARIPALLATH VEEDU (WRONGLY
STATED AS PACHARIPALLATH IN THE JUDGMENT), THITTAMEL
MURI (WRONGLY STATED AS THRIPPANAYIL MURI IN THE
JUDGMENT) CHENGANNUR VILLAGE, CHENGANNUR , CHENGANNUR
P.O., CHENGANNUR TALUK, PIN-689 121
BY ADVS.
SRI K.K.CHANDRAN PILLAI (SR.)
SMT.S.AMBILY
MICKY THOMAS
RESPONDENTS/APPELLANT & 2ND RESPONDENT/DEFENDANTS:
1 K.P.JAWAHAR
AGED 54,S/O. PICHA MUHAMMED RAWTHER, PALLICKACHUVATTIL
VEEDU, KOLLAIL P.O., SATHAYMANGALAM, CHIRAVOOR MURI,
CHITHARA VILLAGE, KOTTARAKKARA TALUK,PIN-691 559
2 K.P.MIZHSA
AGED 49, S/O. PICHA MUHAMMED RAWTHER, (WRONGLY STATED
AS MIRSA IN JUGEMENT), PALLICKACHUVATTIL VEEDU, KOLLAIL
P.O., SATHAYMANGALAM, CHIRAVOOR MURI, CHITHARA VILLAGE,
KOTTARAKKARA TALUK, PIN-691 559
BY ADVS.
SRI V.PREMCHAND
SRI SURYA MOHAN P.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
18.12.2023, THE COURT ON 22.05.2024 THE FOLLOWING:
RSA No.843 of 2021
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T.R.RAVI.J
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RSA No.843 of 2021
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Dated this the 22nd day of May, 2024
JUDGMENT
The appeal has been filed by the plaintiff being
aggrieved by the judgment of the First Appellate Court,
reversing the decree granted in his favour by the trial court.
The parties are referred to as per their status before the trial
court.
2. The suit was filed initially with a prayer for injunction
and was later amended to include the prayer for declaration
of title and possession. The defendants are brothers and are
children of one Picha Mohammed Rawther. Plaint A and B
schedule properties originally belonged to the father of the
defendants. The plaintiff purchased the properties as per
sale deed No.1213/2009 dated 26.09.2009 of Chithara Sub
Registry Office. Plaint A schedule property is of an extent of
40.47 Ares equivalent to 1 Acre comprised in Re.Sy.No.169/7
in Block No.666 of Chithara Village. Plaint B schedule is of
an extent of 25.75 of land comprised in Re.Sy.No.385/3 in
Block No.55 of the same village. Plaint B schedule lies at a
distance of about 1 ½ kilometers from A schedule property.
According to the plaintiff, there is a mud wall, wire fencing,
etc., demarcating the property. Both A and B schedule
properties are planted with rubber. The suit was initially filed
for injunction on the averment that the defendants were
trying to trespass into the properties and committing waste.
According to the plaintiff, the attempt was to take back the
property which had been transferred to the plaintiff by the
father of the defendants.
3. The defendants filed separate written statements.
The 1st defendant contended that the description of the
property is incorrect. It is contended that plaint A and B
schedule properties are not lying separately, and the said
contention is belied by the Commission Report. It is also
stated that he was not aware of any sale deed being
executed by his father in favour of the plaintiff. It is further
stated that without a proper survey of the property and a
survey plan, it is not possible to identify the property which
is claimed by the plaintiff. According to the 1st defendant, the
defendants and their parents were having difference of
opinion and several cases were pending between them, and
taking advantage of the above situation, the plaintiff had
obtained a sale deed in his favour and filed the suit. It is
further contended that the properties are still in the
possession of the parents and the 1 st defendant has no need
to encroach into the plaint schedule properties. It is further
contended that the plaint schedule properties are a portion
of a larger extent of property in which the parents of the
defendants were residing.
4. The 2nd defendant in his written statement
contended that suit for injunction simpliciter will not lie
without a prayer for declaration of title and possession. It is
contended that since the plaintiff did not have title or
possession, the suit for injunction will not lie. He has also
contended that description shown in the plaint is incorrect,
as can be seen from the rough sketch prepared by the
Advocate Commissioner. It is also contended that the
Commissioner has failed to identify the plaint schedule
property and that A and B schedule properties are not
separated from adjacent properties. He also contends that
the property must be located by survey and demarcation.
Another contention that is taken by the 2 nd defendant is that
plaint A and B schedule properties have been transferred in
his favour by an oral gift by his parents on 20.12.2000. He
claims that he has other properties near plaint A and B
schedule properties, planted with rubber, and he is taking
yield from the said trees also. He therefore contends that his
parents did not have any right to execute any sale deed in
favour of the plaintiff since they did not have any title or
possession over the property, which they had parted after
the oral gift. It is further stated that the 2 nd defendant had
filed OS.No.91/2009 against his father, sister and brother
and for declaration of the title and possession of the property
covered by the oral gift. A writ petition had been filed before
this Court in connection with the said dispute and the matter
was referred to a mediator and the parties had settled the
issue between them. It is further stated that the plaintiff was
aware of all these proceedings, but he had suppressed the
same in the suit. It is also claimed that mutation was
obtained by fraudulent means and there are no boundaries
separating the plaint schedule property and the 2 nd
defendant is tapping the rubber in the plaint schedule
properties along with those in his adjoining property.
5. Pending the suit, the plaintiff had got the suit
amended by inclusion of a prayer for declaration of title and
possession over plaint A and B schedule properties and with
prayers to fix the eastern and southern boundaries of plaint
A schedule property and the eastern boundary of plaint B
schedule property and for permission to put up a boundary
through the intervention of the Court. The defendants filed
additional written statements after the amendment of the
suit. Additional schedules of properties were also included by
amendment. The property of the 1st defendant situated on
the eastern side of A schedule has been included as plaint C
schedule and the property of the 2nd defendant on the
southern side of A schedule has been included as D schedule
in the plaint. Another item of property belonging to the 2 nd
defendant situated on the eastern side of B schedule has
been included as E schedule.
6. On the basis of the above pleadings, issues were
framed and the parties went for trial. On the side of the
plaintiff, the plaintiff was examined as PW1 and one witness
was examined as PW2. Exts.A1 to A8 documents were
marked. On the side of the defendants, the defendants were
examined as DW1 and DW2 respectively. Exts.B1 to B5 were
marked on their side. CW1 and CW2 were examined as Court
witnesses and Exts.C1, C1(a), C1(b) C2, C2(a), C2(b) and
C2(c) were marked as Court documents. All the properties
scheduled to the plaint were identified by the Commissioner
with the help of a surveyor and a report with sketch and plan
was produced, showing the demarcation of the properties.
7. The trial Court on a detailed consideration of the
facts and evidence adduced, decreed the suit declaring title
and possession of the plaintiff over plaint A and B schedule
properties and allowing him to put up a boundary of A and B
schedule property as identified in Exts.C2(c) and C2(b). The
court also granted a decree of permanent prohibitory
injunction restraining the defendants from trespassing into
plaint A schedule property or committing waste in it or
obstructing the plaintiff from entering into or taking yield
from plaint A and B schedule properties.
8. The 1st defendant accepted the judgment and did not
challenge it. The 2nd defendant challenged the judgment and
decree in AS.No.31/2018 before the Subordinate Judge,
Kottarakkara. The Appellate Court raised the following 4
points for consideration;
"1. Was the suit properly valued and sufficient court fee paid?
2. Did the second defendant prove that he acquired title and
possession over the plaint A and B schedule properties
by an oral gift?
3. Is the identification and fixation of the boundaries of the
plaint A and B schedule properties correct?
4. Should the judgment and decree be reversed, varied or
modified?"
9. The Court held that the suit was properly valued and
sufficient court fee has been paid. The Court also found that
the 2nd defendant had not adduced any evidence to prove
that he had acquired the title and possession over the plaint
A and B schedule properties based on the oral gift which he
had pleaded and held that the 2nd defendant's parents had
title and possession over plaint A and B schedule properties
and they were competent to execute sale deed in favour of
the plaintiff. However, the Court compared the evidence
tendered by CW1 and CW2 and held that it is unsafe to
accept the version given by CW2. The Court held that the
boundary cannot be determined on the basis of the location
of pits and stone pillar fence, since such a fence was not
present at the time of institution of the suit as spoken to by
CW1. The Court found that the proper method is to identify
the boundary between A and B schedule properties by
survey on the basis of the title deed. Thereafter, the Court
considered Ext.C2(c) which is the survey plan which shows
the eastern boundary of plaint A schedule property and the
southern boundary. Ext.C2(b) which is the survey plan of
plaint B schedule property also was noticed by the Court and
it was found that the eastern boundary of plaint B schedule
property has been identified by 'LM' line. The court further
found that the 2nd defendant had not pointed out any
mistakes in the survey plans and that Exts.C2(b) and C2(c)
were prepared on the basis of the title deeds. However, the
court after referring to the plaint description and the
description in Ext.A1 title deed and comparing it with
Ext.C2(c) found that the boundaries do not tally. The said
finding is against what was found earlier that Exts.C2(b) and
C2(c) were prepared as per the title deed and no mistakes
had been pointed out in the survey plans by the defendants.
The Court noticed that the commission reports had not been
challenged.
10. Regarding plaint B schedule property, the Court
found that as per Ext.C2(b), there is no Panchayat Road on
the west of plaint B schedule property but the plaint and
Ext.A1 show such a way. It is also stated that 'thodu' stated
to be on the south in the plaint is actually passing through
the south-western tip of plaint A schedule property.
Thereafter, the Appellate Court concluded that plaint A and B
schedule described in the plaint differs from the property
that is identified in Exts.C2(c) and C2(b) and hence it is not
possible for the Court to declare the title of the plaintiff over
plaint A and B schedule properties and to fix its boundaries.
On such a finding, the judgment of the trial court has been
reversed.
11. The second appeal was admitted on the following
substantial questions of law;
(i) Whether the lower Appellate Court is legally
justified in reversing the judgment and decree of
the trial court without interfering with the title and
possession of the plaintiff and competency of the
vendors, after rejecting the case of oral gift and
possession of the plaint schedule property by the
2nd defendant?
(ii) Whether the lower Appellate Court is legally correct
in reversing the judgment and decree of the trial
court after accepting Ext.C2, C2(b) and C2(c)
which are not even objected to by the parties to
the suit stating that there is difference in the
boundaries of the plaint schedule property as
shown in the plaint and as shown in Ext.A1 sale
deed?
12. Heard counsel for appellant and respondents.
13. Senior counsel Sri.K.K.Chandran Pillai appearing
on instructions from Smt.Ambily S. contended that there was
no reason for the First Appellate Court to have interfered
with the judgment and decree of the trial court. The Counsel
argued that after having found that the title claimed by the
2nd defendant has not been proved and that the parents of
the defendants were competent enough to transfer the
property in favour of the plaintiff, there was no reason for
disallowing the prayer for declaration of title on the basis of
the title deeds obtained by the plaintiff from the father of the
defendants. I find considerable force in the said argument.
The trial court as well as the First Appellate Court specifically
found that the right claimed by the 2 nd defendant over plaint
A and B schedule properties on the basis of an oral gift
cannot be sustained in the absence of any evidence. As
against that, the plaintiff had produced the registered title
deed as well as Exts.A2 to A5 tax receipts clearly showing
their possession of plaint A and B schedule properties. The
trial court had considered the above aspects to hold that the
defendants have no manner of right over plaint A and B
schedule properties and that there are no documents to
prove their right over the same. The only question that was
remaining was to fix the boundaries of plaint A and B
schedule properties. In this regard, it is pertinent to note
that the 1st defendant did not file an appeal and accepted the
judgment of the trial court. The property of the 1st defendant
which has been shown as C schedule in the plaint is on the
east of A schedule. Since there was no appeal by the 1 st
defendant, fixation of boundary on the east of A schedule
could not have been denied. The property of the 2 nd
defendant who was the appellant before the First Appellate
Court are D schedule and E schedule properties. D schedule
property lies on the southern side of A schedule and E
schedule lies on the eastern side of B schedule. The reason
noticed by the First Appellate Court, to say that the plaint
schedule properties have not been properly identified is that,
the northern boundary of plaint A schedule property has
been described as 'thodu' in Ext.C2(b) and not as road. As a
matter of fact, there was no dispute regarding the northern
boundary of plaint A schedule and the Court was not
concerned about the northern boundary. The finding that the
northern boundary was different is hence beyond the point,
and, so long as there was no dispute with regard to the
southern boundary of A schedule property which demarcates
D schedule property of the 2nd defendant, there is no reason
to deny the relief of fixing the southern boundary of plaint A
schedule. When it comes to B schedule property, the
boundary to be fixed is the eastern boundary. The finding of
the First Appellate Court is that there is a variance of the
description shown in Ext.C2(b) and the plaint at Ext.A1,
insofar as, there is no Panchayat road on the west of plaint B
schedule property. Here again the Court was not concerned
about the west of plaint B schedule and what was necessary
was fixing the eastern boundary. As far as the eastern
boundary is concerned, no discrepancy has been noted by
the First Appellate Court in the reports and plans submitted
by the Advocate Commissioner. I find that the reason of the
First Appellate Court is perverse and against the evidence
that has been tendered by the parties. The trial Court had
clearly found that the properties have been identified and
the boundaries are to be fixed as found by the Commissioner
with the help of the Surveyor. There was absolutely no
necessity to interfere with the said finding on the basis of
some imaginary discrepancies in the boundaries with which
the Court was not even concerned. The appellate court was
hence not legally justified in reversing the judgment and
decree of the trial court particularly since the appellate court
has confirmed the finding of the trial court as regards the
title of the plaintiff, the reports and plans Exts.C2, C2(a),
C2(b) and C2(c) noting that there has been no dispute
regarding the commission report and plan raised by the
defendants at any point of time. The substantial questions of
law framed are answered as above.
It is settled law that in cases where the trial court or
the first appellate court have not appreciated the entire
evidence on record from the correct perspective or there is
perversity in the appreciation of the evidence or had
disregarded the evidence available on record or has arrived
at a conclusion based on totally irrelevant factors, it is open
for this Court to interfere under Section 100 of the Code of
Civil Procedure. I have already held that the reasoning of the
First Appellate Court is perverse and there was no reason to
interfere with the well-considered judgment of the trial
court. The appellant is entitled to succeed in this appeal. The
second appeal is allowed. The judgment and decree of the
First Appellate Court is set aside and the judgment and
decree in OS.No.31/2012 of the Munsiff Court, Kottarakkara
is affirmed. The parties shall bear their respective costs.
Sd/-
T.R.RAVI
JUDGE
sn
