C. Chandran v. Nandini and Shibu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 31ST DAY OF MAY 2013/10TH JYAISHTA 1935** **RSA.No. 301 of 2010 ( )** **------------------------** **AGAINST THE JUDGMENT IN AS 365/2005 of DISTRICT COURT, THIRUVANANTHAPURAM DATED 10-11-2009** **AGAINST THE JUDGMENT IN OS 954/2002 of I ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM, DATED 24-06-2004** ## **APPELLANT(S)/APPELLANT/PLAINTIFF:** **---------------------------------------------------------** **C.CHANDRAN, S/O. CHELLAPPAN, T.C.25/553, VAYAINIKATHIYA PUTHEN VEEDU, THAMPANOOR TRIVANDRUM AND NOW RESIDING AT RAILWAY QUARTERS NO. 80 F, POOJAPPURA THIRUVANANTHAPURAM.** **BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENT(S)RESPONDENTS/DEFENDANTS:** **----------------------------------------------------------------------** ## **1. NANDINI, D/O. ROBAMMA, RESIDING AT VAYAINIKATHIYA PUTHEN VEEDU, THAMPANOOR THIRUVANANTHAPURAM.** ## **2. SHIBU, S/O. RETNA BAI, RESIDING AT** - **VAYAINIKATHIYA PUTHEN VEEDU, THAMPANOOR THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. SRI.S.MOHAMMED AL RAFI** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. No. 301 of 2010 -----------------------------------------Dated this the 31[st] day of May, 2013 ## **J U D G M E N T** The plaintiff is the appellant. Suit was filed for injunction restraining the defendant/respondent from trespassing into plaint A schedule property. It was contended that the property belonged to the plaintiff's father, who obtained purchase certificate in respect of 3 cents of land as per the order in O.A No.359/1977. The further case of the plaintiff is that the plaintiff's father was in possession of another 0.500 cents of land also since 1945 and that there was a granite basement on the northern boundary and that his property is up to and inclusive of that basement/compound wall. Alleging trespass by the defendants, suit was filed. **-2-** ## **R.S.A. No. 301/2010** 2. The defendants filed written statement and also a counter claim contending that they have obtained purchase certificate in respect of 3 cents of land and that the plaintiff had encroached into the defendants' property. The defendants prayed for prohibitory injunction and also for a mandatory injunction to remove that portion of the building constructed by the plaintiff which is trespassing into defendants' property. 3. Before the trial court the plaintiff/appellant was examined as PW1 and Exhibits A1 to A7 were marked. The 2[nd] defendant was examined as DW1 and Exhibits B1 to B9 were marked. Advocate Commissioner was examined as CW1. Commissioner's report and plan were marked as C1 to C4. ## **R.S.A. No. 301/2010** **-3-** 4. The trial court found that the allegation of trespass made against the defendant is not true, whereas the plaintiff has trespassed into the defendants' property to an extent of 416 square links. Hence, prayer of mandatory injunction was allowed in favour of the defendant, directing the plaintiff to demolish that portion of the building which encroaches into the defendants' property. Concurring with the trial court, the appeal preferred by the plaintiff was dismissed by the learned District Judge. 5. The following substantial question of law has been re-framed for consideration:- i) Are the courts below justified in holding that the plaintiff has encroached into a portion of the defendants' property constructing a building (a portion of the building) when it is reported by the Advocate Commissioner that there is an old mud wall to separate the property of the plaintiff from that of the defendants ? **R.S.A. No. 301/2010** **-4-** 6. The learned counsel for the appellant submits that there was no proper identification of the plaint schedule property. It is also contended that there was a granite basement and it was on the very same basement the wall of the building was constructed but that fact was ignored by the courts below. The finding that the plaintiff has title and possession only over 3 cents of land and the rejection of the plea raised by the plaintiff that he and his father had been in possession of another half cent of land is unsustainable, it is argued. The appellant contends that the plan prepared by the Advocate Commissioner is unacceptable and the mandatory injunction directing removal of a portion of the house constructed by the plaintiff is liable to be interfered with. 7. The learned counsel for the respondents has resisted this submission pointing out that there was no **-5-** ## **R.S.A. No. 301/2010** mention whatsoever in the partition deed or in any other document that the plaintiff or his predecessor was in possession of any extent in excess of 3 cents of land. In other words, the contention that the plaintiff's father was in possession of half a cent of land is only a story put forward by the plaintiff to justify the encroachment made by him into the defendants' property. The plaintiff has obtained purchase certificate only in respect of 3 cents of land. Similarly, the defendants have obtained purchase certificate for 3 cents of land in their possession. The courts below have analysed the evidence adduced in this matter in the correct perspective. Relying on the Commissioner's report and plan the courts below have concurrently held that the plaintiff could not establish his right over any extent of land other than the 3 cents of land covered by the purchase certificate, the respondent contends. ## **R.S.A. No. 301/2010** **-6-** 8. Much has been argued by the learned counsel for the appellant contending that in Ext. C1, the Advocate Commissioner has reported that the northern boundary wall is at a distance of two feet from the plaint schedule building and that the said wall is aged more than 20 years and so it has to be found that the said compound wall, aged about 20 years, is the northern boundary of the plaintiff's property. That observation was made by the Commissioner without measuring the property. In the report, originally, the Commissioner has noted that the compound wall is aged about 10-20 years, later it was corrected as 20-25 years. It is not the opinion made by the Advocate Commissioner that can decide the issue. That Commissioner, who filed Exts. C1 and C2, was not examined before Court to state on what basis the said opinion, surmise or supposition was made by her. Therefore, the argument that there was a compound wall on the north for about 20 years and so the **-7-** ## **R.S.A. No. 301/2010** defendant cannot contend that the plaintiff has encroached upon a portion of the defendant's property is found to be denuded of any merit. 9. Ext. C3 is the second report. In Ext.C3 the Commissioner has stated that the plot LCGHJDK is the property which was obtained by the plaintiff. It was noted that in the property held by the defendant there is a house bearing TC number 25/553 and that it has got electric connection also. The number of the same has also been mentioned in the report. It was further noted in paragraph 3 of the report (page 4 of Ext. C3) that after the property was measured with the help of the Surveyor a small portion of the property was seen encroached upon by the plaintiff. That portion is seen marked as GHJPC. It was noted that that is actually a portion of the northern room of the house constructed by the plaintiff. That portion is marked as GHJDC. It was further mentioned that the said construction ## **R.S.A. No. 301/2010** **-8-** was aged only about two years. The fact that the construction was in progress when the Advocate Commissioner visited, for the purpose of Ext. C1, is discernible from Ext.C1 report itself. That will show that the said construction was started on the eve of the suit and it was completed after obtaining temporary injunction against the defendant, the defendants contends. Therefore, it is crystal clear that the plaintiff encroached upon a portion of the property of the defendants and constructed the same in order to lay claim over the property belonging to the defendant. 10. The surveyor who was examined as CW1 has stated that the properties were measured based on the kudikidappu certificate and the sketch appended thereto issued by the Land Tribunal. The plaintiff was issued the purchase certificate in O.A. No. 395/1997. It was further ## **R.S.A. No. 301/2010** **-9-** stated by CW1 that he had also perused the measurements shown in the partition deed. The evidence would show that both kudikidappukars were allotted kudikidappu right of three cents each. Therefore, the contention that the plaintiff was having more than 3 cents of land cannot be accepted at all. 11. The plaintiff's contention that his father was in possession of another half cent of land, besides the 3 cents of land covered by the kudikidappu certificate, is found to be a shear myth. The plaintiff has to confine his claim only to three cents of land covered by the purchase certificate issued in his favour by the Land Tribunal. The defendant was also assigned three cents of land as per the kudikidappu certificate issued by the Land Tribunal. As has been stated earlier, both kudikidappukars were assigned three cents of land each. Therefore, the plaintiff cannot successfully ## **R.S.A. No. 301/2010** **-10-** contend that he is entitled to or is in possession of land more than three cents of land. The courts below have analysed the evidence in the correct perspective and turned down the plea raised by the appellant. 12. Though a contention was raised by the plaintiff that the Surveyor did not locate or measure the property of the defendant, it was specifically stated by him that three cents of land obtained by the defendants was also clearly located. That plot has been separately marked in the plan Ext. C3 (a). 13. The argument vehemently advanced by the learned counsel for the appellant that a small portion of the house constructed by the plaintiff has to be demolished if the decree is to be sustained and that will cause serious prejudice to the plaintiff/appellant, cannot be sustained at ## **R.S.A. No. 301/2010** **-11-** all in view of the fact that such a construction was made by the appellant on the eve of the suit. When the Advocate Commissioner inspected for the first time, the work was in progress to see that the construction was completed under the cover of the injunction order. Be that as it may, the construction was made on the eve of the suit and it was completed only after the filing of the suit. Therefore, the contention that serious prejudice would be caused to the appellant, cannot be accepted. 14. The learned counsel for the respondent has pointed out the admission made by P.W.1 that his father had obtained three cents of land by way of kudikidappu and the said three cents of land were fixed by keeping survey stones. It was stated that a plan was also there for the said property. It was further stated that even when that property was subjected to partition, the extent of land mentioned was only three cents. It was also admitted by ## **R.S.A. No. 301/2010** **-12-** him that the northern boundary property is in the possession of the defendant. It was further made clear by the plaintiff himself that the northern boundary of the plaintiff's property is the southern wall of the house belonging to the defendant. Therefore, the contention that the wall seen by the Advocate Commissioner is the boundary of his property and so he is having property up to that boundary line cannot be sustained. It is also in evidence that formerly there was only a thatched house in the kudikidappu land measuring three cents held by the plaintiff's father and thereafter that house was demolished and the construction of the new house was started on 22-52002. The fact that the Corporation had granted license/permit has been projected by the learned counsel for the appellant to contend that the plaintiff was in possession of that much land. It is not the Municipality or the Corporation who has to decide what is the extent held by ## **R.S.A. No. 301/2010** **-13-** each of the parties. When the title or possession is based on a document it is for the court to decide what is the extent of land held by the party. Therefore, the issuance of the plan or license will not disentitle the defendant to claim the property covered by his purchase certificate. When a specific question was put to P.W.1 that the construction of the building was made by him in contravention of the plan issued by the Corporation he says that the plan was not completely changed; to mean, that he did not construct the building exactly in accordance with the plan and he further says that some changes were made by him . Therefore, that also would go against the case of the appellant. The courts below have analysed the evidence adduced by both sides and appreciated the evidence correctly. It is not a case where there was nonconsideration of the relevant evidence nor was any perverse approach made by the courts below. ## **R.S.A. No. 301/2010** **-14-** 15. It is not the case where any important piece of evidence was omitted to be taken note of by the courts below. Similarly it is not a case where the Court based its conclusion on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence and as such the contention that this Court would be perfectly justified in upsetting the findings concurrently entered by the courts below is bereft of any merit. In the particular factual scenario the decisions of the Apex Court relied upon by the learned counsel for the appellant in **Rattan Dev. v. Pasam Devi - (2002) 7 SCC 441, Yadarao Dajiba Shrawane v. Nanilal Harakchand Shah and Others - (2002) 6 SCC 404** and **Deva v. Sajjan Kumar - (2003) 7 SCC 481** have no application at all. It is not a case where the burden of proof was wrongly cast on the appellant . As such, I find no reason to interfere with the concurrent finding entered by the **-15-** ## **R.S.A. No. 301/2010** courts below that the construction of the building made by the plaintiff encroaches into the defendants property to an extent of 416 square links. It is perfectly correct. The prayer for mandatory injunction was rightly allowed by the courts below. I find no reason to interfere with the judgments and decrees passed by the courts below. This Second Appeal is accordingly, dismissed. No costs. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj/ani