Chandrika, Geetha and Shani v. Sudhakaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943** **RSA NO. 834 OF 2018** **[Against the judgment and decree dated 16.3.2018 in A.S.No.82/2016 on the file of the Subordinate Judge's Court, Perumbavoor, which arose from the judgment and decree dated 22.12.2015 in O.S.No 117/2012 on the file of the Munsiff's Court, Perumbavoor]** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS:** 1 CHANDRIKA AGED 55, W/O. RAVEENDRAN, KOTTAYI VEETTIL, KUTTAMASSERY KARA, KEEZHMAD VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT - 683 105 2 GEETHA, AGED 47, W/O SUDHAKARAN, PUTHANPURACKAL VEETTIL, KANNAMPARAMBU KARA, VENGOOR VILLAGE, ERNAKULAM DISTRICT-683546. 3 SHANI AGED 42, W/O BABU, THEVACKAL, NARANATH VEETTIL, VADAVUCODE KARA, THRIKKAKKARA NORTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682310. BY ADV MEREENA .J. JOSEPH ## **RESPONDENT/APPELLANT/DEFENDANT:** SUDHAKARAN AGED 51 YEARS S/O KUMARAN, PUTHANPURACKAL VEETTIL, VADAKKE EZHIPRAM KARA, VAZHAKULAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM-686670. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16.07.2021, THE COURT ON 20.07.2021 DELIVERED THE FOLLOWING: R.S.A.No.834 of 2018 **==> picture [22 x 9] intentionally omitted <==** ## **J U D G M E N T** This Regular Second appeal is directed against the judgment and decree dated 16.3.2018 in A.S.No.82/2016 on the file of the Sub Court, Perumbavoor, (hereinafter referred to as 'the first appellate court') which arose from the judgment and decree dated 22.12.2015 in O.S.No 117/2012 on the file of the Munsiff's Court, Perumbavoor (hereinafter referred to as 'the trial court'). The appellants in the appeal are plaintiffs in O.S.No.117/2012 and the respondent is the defendant therein. The parties are hereinafter referred to as 'the plaintiff' and 'the defendants' according to their rank in the trial court unless otherwise stated. 2. The suit was one for fixation of boundary, declaration of title, recovery of possession, both R.S.A.No.834 of 2018 **==> picture [22 x 9] intentionally omitted <==** mandatory and permanent prohibitory injunction. The trial court decreed the suit in part directing the defendant by a mandatory injunction to remove the construction made in the respective plaint schedule property. The defendant was also restrained by a decree of permanent prohibitory injunction from trespassing into the properties of the plaintiff. However, the prayer for fixation of boundary was declined. The plaintiffs did not prefer any appeal challenging the findings of the trial court. However, the defendant appeals. The first appellate court allowed the appeal and dismissed the suit. The divergent judgments of the two courts below are under challenge in this appeal. 3. The plaintiffs and the defendant are siblings. The mother of the plaintiffs and the R.S.A.No.834 of 2018 **==> picture [22 x 8] intentionally omitted <==** defendant was the owner in possession of 52 cents of property comprised in Sy.Nos.361/2 and 361/3 of Vazhakkulam Village. Out of the 52 cents of property referred to above, 10 cents of property was settled in favour of the defendant and the residual property was settled in favour of the plaintiffs by their mother by Document No.5564/2011 of Perumbavoor Sub Registrar Office. The respective property of the plaintiff was included as plaint 'A' schedule property. The defendant is admittedly residing in the north western side of the plaint 'A' schedule property. The plaint A schedule property was, in fact, segregated from the property of the defendant by height difference. It is alleged that on 28.3.2012, the defendant commenced construction of a foundation after encroaching into the plaint 'A' schedule property R.S.A.No.834 of 2018 **==> picture [22 x 8] intentionally omitted <==** on its western side. Resultantly, the suit was instituted before the trial court. An Advocate Commissioner was appointed to prepare a mahazar and plan with the assistance of surveyor. The Commissioner submitted the plan and report before the trial court. Relying on the Commissioner's report, the plaintiff sought to amend the plaint wherein the portion encroached by the defendant was shown as plaint 'B' schedule. A mandatory injunction was sought for with a direction to the defendant to demolish the cattle shed and to hand over vacant possession of the plaint 'B' schedule property to the plaintiffs. A relief of declaration of title was also prayed for along with a prayer for permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property. 4. The defendant filed written statement and R.S.A.No.834 of 2018 **==> picture [22 x 9] intentionally omitted <==** additional written statement contending that the description of the plaint schedule property is incorrect and the plaintiffs had not obtained properties lying in Sy.No.361/2. According to the defendant, an area of 8.20 ares of land lying in Re-Sy.No.361/2 is in the absolute possession and enjoyment of the defendant. According to them, the house of the defendant is situated on the northern side of the aforesaid 8.20 ares and the cattle shed is situated on its southern side. The plaintiffs filed the suit for fixation of boundary of the property over which they have no right at all. The defendant contended that the entire property lying in Re.Sy.No.361/2 is in the possession of the defendant even prior to Document No.3214/2000. It was further contended that the defendant had constructed granite stone foundation R.S.A.No.834 of 2018 **==> picture [22 x 8] intentionally omitted <==** through the eastern and southern boundaries of his property. Even if the plaintiffs have any right over any portion of the property in possession of the defendant, it was alleged that the same was lost due to adverse possession and limitation. 5. Upon the pleadings, the trial court framed necessary issues for trial. The plaintiff tendered oral evidence by examining PWs.1 and 2 and Ext.A1 was marked. The defendant did not adduce any evidence. Exts.C1 to C2(a) were also marked. 6. The defendant mainly contended before the trial court that since the plaintiffs have not scheduled the property of the defendant in the plaint, the plaintiffs are not entitled to get the relief for fixation of boundary. The trial court declined the prayer for fixation of boundary. When the appeal was R.S.A.No.834 of 2018 **==> picture [22 x 9] intentionally omitted <==** taken, the first appellate court found that the total extent of property comprised in Re-Sy.No.361/3 is not amended in the plaint. It was also found that the plaintiff failed to challenge the dismissal of the suit for fixation of boundary. The first appellate court also found that the recovery of possession was granted without fixing the boundary. The first appellate court also found that the identity of the plaint 'A' schedule property is not proved and the plaintiffs are not entitled to get any relief. 7. Heard the learned counsel for the appellants. The learned counsel for the appellants contended that if the first appellate court finds that the property is not identified, the first appellate court should have given opportunity to the plaintiffs to substantiate their case in pursuit of the substantial R.S.A.No.834 of 2018 **==> picture [22 x 9] intentionally omitted <==** justice. Learned counsel for the appellants further contended that the defendant deliberately did not mount the witness box and adduce evidence. Under such circumstances, an adverse inference has to be drawn against him. The learned counsel further pleaded that the defendant trespassed into the property, ignoring the temporary injunction granted by the trial court and later on, set up a plea of adverse possession. 8. It is settled position of law that in a suit for putting up a boundary, it is not boundary of the plaintiffs alone that is to be fixed. It is the boundary between the properties of the plaintiffs and the defendant that is to be fixed. Consequently, it is necessary on the part of the plaintiffs to schedule both the properties of the plaintiffs and the defendant in R.S.A.No.834 of 2018 **==> picture [28 x 9] intentionally omitted <==** the plaint. Since the property of the defendant was not scheduled, the trial court dismissed the suit following the decision of this Court in **Nandakumara Varma & Another** v. **Usha Varma and another** [ (2015 (1) KLJ 73). The plaintiffs have not chosen to file an appeal challenging the fixation of boundary. In fact, the suit was decreed in part declining the prayer for fixation of boundary. Despite the fact that the suit was dismissed, the trial court granted a decree for declaration of title and recovery of possession based on Ext.C2(a) plan prepared by the surveyor, who was appointed to measure out the property with the assistance of an Advocate Commission. In this connection, it is pertinent to note that Ext.C2(a) plan was prepared by the Commissioner with the assistance of surveyor. In the suit, the property of the defendant R.S.A.No.834 of 2018 **==> picture [28 x 8] intentionally omitted <==** was not scheduled as held in **Nandakumara Varma's** case (supra). When the boundary between the properties of the plaintiff and the defendant cannot be fixed, without scheduling the property of the defendant, it was perfectly legal on the part of the first appellate court in holding that the decree for declaration of title and recovery of possession, without fixing the boundary between the property of the plaintiffs and defendant, is improper. In this connection, it is pertinent to note that Ext.C2(a) plan was prepared without measuring the property of the defendant allegedly obtained under Ext.A1. The parties are siblings and they are tracing title from the common ancestor. Nowhere in Ext.C2(a), it is stated that the property of the defendant was measured in accordance with Ext.A1 title deed. R.S.A.No.834 of 2018 **==> picture [28 x 9] intentionally omitted <==** 9. In a suit for declaration of title, putting up the boundary and consequential injunction, it is the duty of the plaintiff to prove his title to the property before court. Weakness of the defendant is not a ground to get a decree in favour of the plaintiffs. The defendant contended that the plaintiffs have no property comprised in Sy.No.361/2. In view of the circumstances, it is necessary on the part of the plaintiffs to prove 52 cents of land owned by the original owner, who was the mother of the plaintiff and defendant respectively. Out of the 52 cents, the mother assigned 10 cents of land to the defendant and remaining property was assigned jointly to the plaintiffs as per Ext.A1 settlement deed. In view of the circumstances, it is necessary to locate the entire 52 cents based on Ext.A1 title deed scheduling the R.S.A.No.834 of 2018 **==> picture [28 x 9] intentionally omitted <==** property of the defendant as well. It was not done. Under such circumstances, the main relief for fixation of boundary was declined by the trial court. It is not logical to declare title of the plaint schedule property on the strength of Ext.C2(a) plan or recovery of the plaint 'B' schedule property allegedly trespassed by the defendant. The alleged encroached portion of the plaint 'A' schedule property, which is scheduled as plaint B schedule property can be identified only if the property of defendant is scheduled. In view of the above circumstances, the first appellate court set aside the judgment and decree of the trial court. The findings are legal and proper, particularly the plaintiffs in this case have not chosen to challenge the decree that went against them before the trial court. To that extent, the decree has become final. Hence, the R.S.A.No.834 of 2018 **==> picture [28 x 8] intentionally omitted <==** question of putting up a boundary and alignment thereof cannot be reagitated in the second appeal. The finding of the trial court, which has become final, debars the plaintiff to take such a contention before this Court under the general principles of res judicata. The finality attained cannot be challenged in second appeal. 10. The second appeal is not a matter of right. A second appeal only lies on a substantial question of law under Section 100 of the Code of Civil Procedure. Where the legal position is clear either on account of express provisions of law or binding precedent, generally, the High Court does not interfere with the finding of the final court of facts in second appeal. The first appellate court decided the claim of the plaintiffs on the strength of its case and not on the R.S.A.No.834 of 2018 **==> picture [28 x 8] intentionally omitted <==** weakness, if any, of the defendant's case. No substantial questions of law are involved in this second appeal. Resultantly, this Regular Second Appeal is dismissed. Considering the facts and circumstances, there will be no order as to costs. Pending applications, if any, stand closed. Sd/- **N.ANIL KUMAR** , JUDGE MBS/