Kerala High Court
Jayan C.V vs Premaja. A on 29 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
RSA NO. 96 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 16.12.2023 IN AS
NO.58 OF 2019 OF SUBORDINATE JUDGE'S COURT, KANNUR ARISING
OUT OF THE JUDGMENT AND DECREE DATED 27.02.2019 IN OS
NO.278 OF 2016 OF MUNSIFF COURT, KANNUR
APPELLANT/1ST RESPONDENT/1ST DEFENDANT:
JAYAN C.V,
AGED 66 YEARS
S/O LATE KUMARAN, RESIDING AT "POOJA" CHELORA,
P.O. VARAM, KANNUR TALUK, KANNUR DISTRICT,
PIN - 670594
BY ADVS.J.R.PREM NAVAZ
SUMEEN S.
MUHAMMED SWADIQ
O.MOHAMED BASIL KOYA THANGAL
RESPONDENTS/APPELLANT & RESPONDENTS 2 & 3/PLAINTIFF &
DEFENDANTS 2 & 3:
1 PREMAJA. A
AGED 68 YEARS, W/O N.C.SADANAND, RESIDING AT
"PREMANAND", 14B, SACHITHANAND NAGAR, NARELA
SHANKARI, BOPAL 23, MADHYA PRADESH, THROUGH HER
POWER OF ATTORNEY HOLDER, BABU ARIPPA, S/O ARIPPA
DAMODARAN, AGED 57 YEARS, PENSIONER, RESIDING AT
PRANAVAM, KARAYAN ROAD, P.O.CHOVVA,
KANNUR DISTRICT, PIN - 670006
2 K.M. MURALEEDHARAN
AGED 56 YEARS, RESIDING AT "MURALILAYAM",
MATHUKOTH, P.O. VARUM, KANNUR, PIN - 670594
3 PRADEEPAN MADATHIL
AGED 53 YEARS, RESIDING AT "JAPA" MATHUKKOTH,
P.O. VARUM, KANNUR DISTRICT, PIN - 670594
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.S.A.No.96 of 2024
2
C.S.SUDHA, J.
------------------------------
R.S.A.No. 96 of 2024
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Dated this the 29th day of May 2024
JUDGMENT
This second appeal under Section 100 read with Order
XLII Rule 1 CPC filed by the first defendant/appellant is against
the judgment and decree dated 16/12/2023 in A.S.No.58/2019 on
the file of the Subordinate Judge's Court, Kannur, which appeal in
turn is against the judgment and decree dated 27/02/2019 in
O.S.No.278/2016 on the file of the Munsiff Court, Kannur. The
parties and the documents will be referred to as described in
O.S.No.278/2016.
2. The suit was filed by the plaintiff/first respondent
against the defendants, who are the appellant and respondents 2
and 3 respectively, seeking declaration and consequential
injunction. According to the plaintiff, the plaint schedule property
originally belonged to his father, namely, Arippa Damodaran, as
per registered sale deed no.147/1962, Sub Registrar Office,
Kannur. After the demise of Damodaran, his legal heirs
partitioned the plaint schedule property along with a larger extent
of property and the plaint schedule property was allotted to the
share of the plaintiff. The plaintiff has been residing in Bhopal
for the past more than 45 years and hence visits the plaint schedule
property once in a year or so. When the plaintiff came to her
property in March 2016, she noticed that the defendants were
trying to trespass into her property and ply vehicles through the
eastern side of her property without her consent. The defendants
have no right to trespass into her property or convert any portion
of the same into a pathway. Hence on 02/04/2016 she caused to
issue a lawyer notice calling upon the defendants to stop their
trespass into the property. Defendants 2 and 3 sent a reply notice
raising untenable contentions. Hence, the suit seeking a decree of
permanent prohibitory injunction for restraining the defendants
from trespassing into the property or constructing any new road
through the property.
3. According to the first defendant, the plaint schedule
property is not identifiable and that the plaintiff had not obtained
title or possession as alleged in the plaint. As per partition deed
no.1378/1987, SRO, Kannur, the first defendant was allotted eight
items of property as D schedule. Item no.7 and 8 in D schedule
having an extent of 1 acre 13½ cent is situated in R.S.No.35/4 of
Chelora amsom, desom. He assigned 34 cents out of item no.6 in
R.S.No.35/3 to defendants 2 and 3 by virtue of deed no.1378/87,
SRO, Kannur. The property was sold after leaving space for a
pathway having a width of 4 meters on the eastern side of the
property starting from the panchayat road on the south. The
intention of the plaintiff is to establish some right over the
property covered by items no. 7 and 8 of partition deed
no.1378/87. He also contended that the pathway constructed by
him about 16 years ago was made for the benefit of his assignees.
The attempt of the plaintiff is to annex the said portion of the
property, a pathway together with her property, for which she has
no right.
4. Defendants 2 and 3, the assignees of the first defendant
also denied the claim of the plaintiff. According to them, there is
a mud road situated on the eastern side of the property claimed by
the plaintiff, which road is situated at a lower level than the
property of the plaintiff and at a higher level from the property of
the first defendant. Defendants 2 and 3 had purchased their
property from the first defendant by virtue of sale deed
no.3119/2002, SRO, Kadachira with a right of 10 feet motorable
road to their property. After the purchase of their property, the
defendants have been using the mud road lying on the eastern side
of their property. The said pathway is also being used by the
plaintiff to reach their property. The said mud road does not
belong to the plaintiff and it is also not in her possession and
therefore she is not entitled to the reliefs prayed for.
5. Necessary issues were framed by the trial court and the
parties went to trial on the basis of the aforesaid pleadings. PW1
was examined and Exts.A1 to A4 and Exts.C1 to C4 were marked
on the side of the plaintiff. The first defendant examined himself
as DW1 and Exts.B1 and B2 were also marked.
6. The trial court on an appreciation of the oral and
documentary evidence and after hearing both sides, dismissed the
suit holding that the plaintiff had failed to prove that she was in
exclusive possession of the plaint schedule property. Aggrieved,
the plaintiff filed A.S.No.58/2019 and as per the impugned
judgment, the appellate court reversed the finding of the trial court
regarding possession and decreed the suit. Aggrieved, the first
defendant has come up in appeal.
7. The trial court on the basis of Exts.C1 to C4 reports
and plans, found the disputed area shown in green colour in
Ext.C4 plan to be part of the plaint schedule property belonging to
the plaintiff. However, the defendants were found to be in
possession of the disputed area. The trial court also found that no
relief of recovery had been sought for and hence as the plaintiff in
a suit for injunction simplicitor failed in proving exclusive
possession and enjoyment of the property, declined to grant reliefs
to the plaintiff. The first appellate court accepted Exts.C1 to C4
reports and plans of the Advocate Commissioner and concurred
with the finding of the trial court that the disputed area belongs to
the plaintiff. However, it interfered with the finding of the trial
court regarding possession of the property.
7.1. According to the first appellate court, the specific case
of the plaintiff all along was that the plaint schedule property was
in her exclusive possession; that the defendants have no right to
trespass into her property or create a motorable way through her
property; and that taking advantage of her absence, the second and
third defendants have started plying vehicles through her property
without her consent. In such circumstances, the burden was on the
defendants to prove that they had a valid right over the disputed
portion of the plaint schedule property. According to the first
defendant, a 10 ft. wide pathway had been reserved to defendants
2 and 3 as per Exts.B1 and B2 sale deeds. Exts.B1 and B2
documents of the year 2002 and 2001 respectively refer to the
existence of a 10 ft. wide pathway on the eastern boundary of the
properties covered by the said documents. However, the appellate
court found that the recitals in Exts.B1 and B2 would not bind the
plaintiff as neither the plaintiff nor her predecessor-in-interest
were parties in the said deed and therefore it could not be taken as
an admission of the plaintiff or her predecessor-in-interest
regarding the existence of a pathway. Therefore the first appellate
court held that the mere fact that a 10 ft. wide pathway is referred
to in Exts.B1 and B2 would not confer any right of way through
the property of the plaintiff and that the defendants would have to
establish an independent right over the disputed area of the plaint
schedule property, that is, the portion marked in green shade in
Ext.C4 plan which is admittedly part of the plaint schedule
property. Hence the appellate court concluded that as long as the
defendants do not establish any right over the disputed portion, the
principle that possession follows title, would have to be accepted.
The first appellate court also held that the conclusion/finding of
the trial court that the defendants are in possession of the disputed
area, is erroneous. It was noticed that the defendants had never a
case that they had acquired a right of easement by prescription
over the disputed area or that they had perfected title over the
property by adverse possession and limitation. They also did not
have a case that the plaintiff had been dispossessed of the disputed
area. On the other hand, the appellate court noticed that the
second and the third defendants had specifically pleaded in their
written statement that the disputed pathway or the disputed portion
of the plaint schedule property was being used as a pathway by the
plaintiffs also as ingress and egress to her property. In such
circumstances, the conclusion/finding of the trial court that
defendants 2 and 3 were in exclusive possession of the disputed
plaint schedule property was found to be incorrect and so reversed
the same.
8. Heard the learned counsel for the appellant/first
defendant.
9. It was quite strenuously and persuasively argued by the
learned counsel for the first defendant that the first appellate court
committed a grave error in reversing the findings of the trial court
and granting a decree in favour of the plaintiff. According to him,
the suit was one for injunction simplicitor and in such a case when
there was clear evidence/materials on record to show that the
plaintiff was not in possession of the disputed area, the relief of
decree of injunction ought not to have been granted. It is also
clear from the evidence on record that the defendants are in
exclusive possession of the disputed area. The plaintiff never
sought recovery over the disputed area and hence all the more
reason for the first appellate court not to have granted a decree in
favour of the plaintiff. The learned counsel also relied on the
dictum in Suresh Lataruji Ramteke v. Sau. Sumanbai
Panduran Petkar, AIR 2023 SC 4794 : 2023 KHC 6869.
10. In Suresh Lataruji Ramteke (Supra), the Apex Court
explained the procedure to be followed by the second appellate
court in dealing with appeals under Section 100 CPC. As held in
the said case, hearing of a second appeal is a step by step process,
each step being a consequence of the previous one. The different
or various stages are - (i) framing of substantial questions at the
stage of admission ; (ii) the appeal then being admitted for
hearing; (iii) hearing thereon ; and (iv) a reasoned judgment.
Therefore the requirement most fundamental under Section 100
CPC is the presence and framing of substantial questions of law.
In other words, the existence of such a question is sine qua non for
exercise of jurisdiction under the Section. Only in the event of
substantial questions of law arising in the appeal, this Court need
to go to the next step of framing substantial questions of law and
then giving an opportunity for either side to address arguments on
the same.
11. In the appeal memorandum it is alleged that the first
appellate court erred in appreciating the principle of burden of
proof and that the decree could not have been granted on the basis
of the alleged weakness in the case of the defendants. It is also
alleged that in the absence of plaintiff proving exclusive
possession, the first appellate court committed a serious error in
granting a decree of injunction in favour of the plaintiff. Exts.C1
to C4, the reports and plan of the Advocate Commissioner, are not
disputed by the defendants. Ext.C3 report and Ext.C4 plan
appears to have been filed by the Advocate Commissioner after
identifying and measuring the property with the help of a
Surveyor. The plaint schedule property has been identified as
'ABCDA plot' and the property of the first defendant as
'CBEFGC' plot. Ext.C3 report further says that an extent of four
cents of property belonging to the plaintiff was seen converted as a
road and the same has been demarcated and shown in green colour
in Ext.C4 plan . This disputed area in green colour is situated on
the western boundary of the first defendant's property leading to
the property of defendants 2 and 3 situated to the further north.
As rightly held by the first appellate court as the defendants had
not disputed or disproved the commission reports and plans, it can
safely be concluded that the plaint schedule property and the
disputed area have been correctly identified. The plaintiff never
had a case that she had been dispossessed of any portion of the
property. Her specific case in the plaint and in evidence is that the
defendants had trespassed into a portion of her property on the
eastern side and in her absence converted or carved out a new
pathway for ingress and egress to their property. It is pertinent to
note that the defendants also have no case that they had
dispossessed the plaintiff of any portion of her property. On the
other hand the specific case of the first defendant, admittedly the
predecessor-in-interest of defendants 2 and 3, is that the disputed
area is part of items 7 and 8 property which he obtained as per
partition no.1378/1987, SRO, Kannur. This document is not seen
produced before the trial court. Moreover, this case of the first
defendant that the disputed area is part of his property has been
disproved by the reports and plans of the Advocate Commissioner
which says that the disputed area is part of the plaint schedule
property belonging to the plaintiff. As noticed earlier, defendants
do not dispute the Commission reports and plans. Therefore it is
clear that the plaintiff has got title over the disputed area also.
12. Now coming to the question of possession of the
disputed area. As noticed earlier, plaintiff never had a case that
she had been dispossessed of any portion of the plaint schedule
property. Defendants have also no case that they had dispossessed
the plaintiff of any portion of her property. The case of the first
defendant that the disputed area is part of his part of his property
obtained as per the partition deed referred to earlier, has been
disproved by the reports and plans of the advocate commissioner.
As noticed by the first appellate court, the case of the second and
the third defendants in their written statement is that the plaintiff is
also using the disputed area as a pathway to reach their property.
Therefore there is no case of dispossession of the plaintiff of the
disputed area at all. They have also no case of exclusive
possession of the disputed area. Therefore as rightly held by the
first appellate court, merely because the defendants have
trespassed and converted and are using a portion of the plaint
schedule property as a pathway, the same would not confer any
right on them unless they are able to establish a right over the
same. The defendants have not established any such right over the
disputed area. That being the position, the first appellate court
was certainly right in holding that possession follows title and this
is especially so when the defendants have never a case that they
are in exclusive possession of the property or that they have
dispossessed the plaintiff of the disputed portion of the property.
There is no perversity or illegality in the findings of the first
appellate court. No substantial questions of law arise in the appeal
and therefore compliance of the three steps as directed by the
Apex Court in the decision cited on behalf of the first
defendant/appellant does not arise. As no substantial questions of
law arise, the appeal is liable to be dismissed in limine and hence I
do so.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
