Kerala High Court
Malu vs Nalini on 6 November, 2024
RSA No.223 of 2017
1
2024:KER:84905
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA,
1946
RSA NO. 223 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 15.02.2016 IN AS
NO.139 OF 2010 OF ADDITIONAL DISTRICT COURT KOZHIKODE- II
ARISING OUT OF THE ORDER/JUDGMENT DATED 31.08.2010 IN OS
NO.379 OF 2007 OF PRINCIPAL MUNSIFF COURT KOZHIKODE-I
APPELLANT/S:
1 MALU
AGED 79 YEARS
AGED 79 YEARS,W/O.LATE NAMBITI GOPALAN,RESIDING
AT
KAMBITTAVALAPPU,KANNANCHERI,KALLAI.P.O,PANNIYAN
KARA AMSOM,DESOM,KOZHIKODE-673003.
2 VIDHYASAGARAN
AGED 57 YEARS,S/O.LATE NAMBITI GOPALAN,RESIDING
AT
KAMBITTAVALAPPU,KANNANCHERI,KALLAI.P.O,PANNIYAN
KARA AMSOM,DESOM,KOZHIKODE-673003.
3 VIDHYABOOSHANAN
AGED 54 YEARS,S/O.LATE NAMBITI GOPALAN,RESIDING
AT
KAMBITTAVALAPPU,KANNANCHERI,KALLAI.P.O,PANNIYAN
KARA AMSOM,DESOM,KOZHIKODE-673003.
4 VIDHYADHARAN
AGED 50 YEARS,S/O.LATE NAMBITI GOPALAN,RESIDING
AT
KAMBITTAVALAPPU,KANNANCHERI,KALLAI.P.O,PANNIYAN
KARA AMSOM,DESOM,KOZHIKODE-673003.
RSA No.223 of 2017
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BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENT/S:
1 NALINI
AGED 75 YEARS,W/O.LATE PUVVATHUMKANDY
KARUNAKARAN,RESIDING AT KARUNA,VALAYANAD AMSOM
AND DESOM,KOZHIKODE TALUK,KOZHIKODE-673011.
2 SAJEESH
AGED 46 YEARS,S/O LATE KARUNAKARAN,RESIDING AT
KARUNA,VALAYANAD AMSOM AND DESOM,KOZHIKODE
TALUK,KOZHIKODE-673011.
3 SASIPRABHA
AGED 51 YEARS,D/O.LATE KARUNAKARAN,,RESIDING AT
KARUNA,VALAYANAD AMSOM AND DESOM,KOZHIKODE
TALUK,KOZHIKODE-673011.
4 SREEJA
AGED 49 YEARS,D/O.LATE KARUNAKARAN,,RESIDING AT
KARUNA,VALAYANAD AMSOM AND DESOM,KOZHIKODE
TALUK,KOZHIKODE-673011.
BY ADVS.
SRI.P.A.HARISH
SRI.V.V.SURENDRAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 06.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA No.223 of 2017
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M.A.ABDUL HAKHIM, J.
.........................................
RSA No.223 of 2017
..................................................................
Dated this the 6th day of November, 2024
JUDGMENT
1. When this Regular Second Appeal came up for
admission, the respondents 1 to 4 also appeared
since they had appeared in the C.M Application to
condone delay. The Regular Second Appeal is
admitted on the following substantial questions of
law;
1. Whether the Regular Second Appeal at
the instance of the defendants is to be
found not maintainable in the absence of
any challenge against the decree
dismissing the Counter Claim?
2. Whether the First Appellate Court is
justified in granting decree with respect
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to 'C' schedule when there is difference
between C schedule in the Plaint and C
schedule in Ext.C3(a) Plan?
3. Whether the First Appellate Court is
justified to grant decree with respect
plaint 'C' schedule property without
identifying plaint 'A' schedule property
and the 2.61 cents of land which is
admittedly belonged to the defendant as
per Exts.A2 and A3 documents?
4. Whether the First Appellate Court is
justified to decree the suit relying on
Ext.C2(a) Plan prepared by the Advocate
Commissioner?
2. With the consent of the counsel on both sides, I
heard the matter on the aforesaid substantial
questions of law.
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3. The defendants in a suit for mandatory and
prohibitory injunctions are the appellants. The
plaintiffs claimed that they are the title holders of
Plaint A schedule property having an extent of 42.75
cents of land as per Ext.A1. The defendants are
having title and possession of Plaint B Schedule
Property having an extent of only 2.05 cents of land.
The allegation is that the defendants trespassed into
plaint 'C' schedule property having 137.37 Sq Ft,
which is a part of the Plaint A Schedule Property.
4. The defendants opposed the suit prayers by filing
Written Statement claiming that they have got title
and possession of 5 cents of land. They also raised
a Counter Claim of easement right over two ways
leading to Plaint B schedule properties through
Plaint A schedule property.
5. The Trial Court dismissed the suit as well as the
Counter Claim. The plaintiff filed an Appeal before
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the First Appellate Court and the defendants filed a
Cross-Objection in the said Appeal against the
dismissal of the Counter Claim. The First Appellate
Court dismissed the Cross Objection finding that as
against the dismissal of Counter Claim, a separate
appeal is to be filed and Cross Objection is not
maintainable in view of the decision of this Court in
Thomas v. Sudha [2010(4) KLT 538]. The First
Appellate Court allowed the Appeal filed by the
plaintiff setting aside the judgment and decree
passed by the Trial Court and decreeing the suit
directing the defendants by way of mandatory
injunction to demolish the structures in plaint 'C'
schedule property and to restore them into original
position, and in case the defendants fail to do so,
giving liberty to the plaintiffs to get it done through
the process of court at the expense of the
defendants, passing a permanent prohibitory
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injunction restraining the defendants from
trespassing into plaint 'A' schedule property
excluding plaint 'B' schedule property or committing
any waste therein. Exts.C2(a) was made part of the
Appellate Decree.
6. I heard the learned counsel for the appellants
Sri.K.Sudhish and the learned counsel for the
respondents Sri.K.P.Harish.
7. The learned counsel for the appellants argued that
the First Appellate Court decreed the suit without
proper identification of the Plaint Schedule
properties. Though Plaint A schedule property is
shown as 42.75 cents and the plaintiff herself
admitted that some portion of the said property is
sold, the Surveyor has identified only 7 cents of land
in Ext.C3(a) Plan as Plaint A Schedule property. The
extent of property belonging to the defendant is
shown as 2.05 cents of land in Plaint B schedule ,
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but as per Ext. A2 and A3, the extent would come to
2.61 cents of land. The said 2.61 cents of land is not
identified by the Advocate Commissioner. What is
identified by the Surveyor is only 2.5 cents of land in
Ext.C3(a). The alleged encroachment, if any, could
be found only on correct identification of Plaint A
Schedule property belonging to the Plaintiffs as per
Ext.A1 and Plaint B Schedule properties belonging
to the defendants as per extent covered by Exts.A2
& A3. Hence, the decree of the First Appellate Court
is liable to be set aside for want of proper
identification of the plaint schedule properties.
8. On the other hand, the learned counsel for the
respondents argued that the Second Appeal itself is
not maintainable since the defendants did not file
any appeal against the decree Dismissing the
Counter Claim. Common findings were entered into
by the Trial Court for dismissing the suit as well as
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the Counter Claim. The plaintiffs alone filed Appeal
before the First Appellate Court. Cross Objection
filed by the defendants was found to be not
maintainable by the First Appellate Court. The
learned counsel relied on the decision of this Court
in Thomas (supra) and argued that in the absence
of a challenge against the decree rejecting the
counter claim, appeal against the judgment and
decree in the suit could not be maintained. The
plaint schedule properties are properly identified by
the Advocate Commissioner in her Plan, which is
marked as Ext.C2(a), and in the Plan of the
surveyor, which is marked as Ext.C3(a).
9. I have considered the rival contentions.
10. It is well settled that when a suit and counterclaim
are disposed with common findings, the aggrieved
party has to file appeals against both the judgment
and decree in the suit and the judgment and decree
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in the Counter Claim. But in the present case, reliefs
are sought in the suit with respect to plaint A, B and
C schedule properties. The Counter Claim is with
respect to two ways alleged to have been leading to
Plaint B schedule property passing through Plaint A
Schedule Property over which the defendants are
claiming easement rights. In the suit, the
adjudication was with respect to the title and
possession of Plaint A, B and C schedule properties,
whereas, in the Counter Claim, the adjudication was
with respect to the right of easement of the
defendants through Plaint A Schedule Property.
There is no common finding for disposing of the suit
and the Counter Claim. In such case, even if the
findings in the Counter Claim are not challenged, the
aggrieved party can maintain the challenge against
the finding in the suit. I find that the Regular Second
Appeal is maintainable even in the absence of a
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challenge against the judgment and decree in the
Counter Claim.
11. Ext.C2(a) relied on by the First Appellate Court
is only a Plan prepared by the Advocate
Commissioner. The Advocate Commissioner is not
an expert to prepare the Plan. Though the side
measurements are shown in Ext.C2(a), the First
Appellate Court ought not to have relied on the
Ext.C2(a) Plan for decreeing the suit. The First
Appellate Court ought to have decided the case on
the basis of Ext.C3(a) Plan, which is prepared by the
Surveyor in the presence of the Advocate
Commissioner.
12. In the Ext.C3(a) Plan, the Plaint A schedule property
is shown as having 7 cents of land. It is not clear
when Plaint A schedule property consists of 42.75
cents of land how the Advocate Commissioner
identified the said property as 7 cents of land. It is
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seen from the Plaint B Schedule that the extent
shown therein is only 2.05 cents of land. Admittedly,
the extent covered by Ext. A2 and A3 title deeds of
the defendants would come to 2.61 cents of land
and the extent shown in Plaint B Schedule is not
correct. Both these Deeds have side measurements
of the schedule properties. In Ext.C3(a) Plan, the
Advocate commissioner has found only 2.5 cents. In
the case of Plaint B schedule Property, the
difference between Exts.A2 &A3 and Ext.C3(a) is
110 sq. links. The extent of Plaint C schedule is only
137.37 Sq Ft. ( About 300 Sq Links). In Ext.C3(a),
the Plaint C Schedule Property was identified as
having 0.158 cents, which means 158 Sq. Links. It
would indicate that the Plaint A and B Schedule
properties were not properly identified by the
Surveyor while preparing Ext.C3(a) Plan. Only if the
Plaint A and B schedule properties are properly
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identified, the C schedule alleged to have been
encroached by the defendant could be correctly
identified. In view of these facts, I find that the
judgment and decree passed by the First Appellate
Court is liable to be set aside for want of proper
identification of the Plaint Schedule Properties. The
suit is liable to be remanded to the Trial Court to
identify the Plaint A,B and C Schedule properties
with reference to Exts.A1, A2, and A3. The Trial
Court is to get a fresh Commission Report and Plan
with the assistance of a Surveyor. Parties are given
liberty to amend the pleadings and adduce evidence
in this regard.
13. The questions of law are answered in the negative
and in favour of the appellant. The Regular Second
Appeal is allowed setting aside the judgments and
Decrees of the First Appellate Court and Trial Court
and remanding the matter back to the Trial Court for
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fresh consideration in the light of the above
directions. It is made clear that the judgment and
Decree of the Trial Court in the Counter Claim is not
interfered with and hence the Counter Claim need
not be considered by the Trial Court. The Trial Court
is directed to dispose of the suit at the earliest, at
any rate, within a period of one year from the date of
receipt of a certified copy of this judgment. The
parties are directed to appear before the Trial Court
on 10.12.2024. Registry is directed to send back
records expeditiously.
Sd/-
M.A.ABDUL HAKHIM,
JUDGE
Dxy
