Dinesan v. Suseela

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944** ## **RSA NO. 855 OF 2013** **AGAINST THE ORDER/JUDGMENTAS 26/2009 OF SUB COURT,KOCHI** **OS 405/2004 OF ADDITIONAL MUNSIFF COURT,KOCHI** ## **APPELLANT(APPELLANT/PLAINTIFF):** **DINESAN AGED 60 YEARS S/O.NARAYANAN, CHORINJINAMTHARA HOUSE, KALATHIPARAMBU, PANDARACHIRA DESOM,PALLURUTHY VILLAGE, KOCHI TALUK,PIN : 682 006. BY ADVS. SRI.DINESH R.SHENOY** ## **RESPONDENT(RESPONDENT/DEFENDANT):** **SUSEELA AGED 57 YEARS W/O.MOHANAN, SUSEELALAYAM KONAM, PALLURUTHY VILLAGE,KOCHI TALUK, PIN - 682 006. BY ADVS. SRI.BENNY JOSEPH SRI.SABU GEORGE NIDHI BALACHANDRAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2022, THE** **COURT ON 29.08.2022 DELIVERED THE FOLLOWING:** R.S.A.No.855/2013 **2** ## **JUDGMENT** The Regular Second Appeal has been directed against the judgment and decree passed in A.S.No.26/2009 on the file of Subordinate Judge's Court, Kochi, which arose out of the judgment and decree in O.S.No.405/2004 on the file of Additional Munsiff's Court, Kochi. 2. The appellant is the defeated plaintiff in both courts. The suit is one for recovery of possession, permanent prohibitory injunction and mandatory injunction. Plaint 'A' schedule property was obtained by the plaintiff as per document No.2503/1983 of Kochi Sub Registry Office. The property is having an extent of 4 cents compromised in survey No.1197/1 of Palluruthy village. Defendant, whose property is situated on the western side of the plaint schedule property, trespassed into a portion of plaint 'A' schedule property in December, 2003 and forcefully constructed a compound wall using concrete slabs and pillars. Though property was measured at the instance of Tahsildar, Kochi, R.S.A.No.855/2013 **3** defendant was not agreeable to accept the measurement. Hence the plaintiff filed the suit for recovery of possession of plaint 'B' schedule property having an extent of 445 sq.links and for a mandatory injunction to demolish the compound wall and also for a consequential injunction from trespassing into plaint 'A' schedule property. 3. The respondent/defendant filed written statement contending that shortage of extent of plaintiff's property is due to the fact that some property on the eastern side of plaint 'A' schedule property has been surrendered for widening the road. The defendant constructed the compound wall in the year 1992 in the presence of plaintiff with his request. During 2003, plaintiff reconstructed the house projecting the sunshade into the defendant's property which was removed later. That provoked the plaintiff to demolish portion of the compound wall of the defendant. No trespass was found in the measurement of Taluk Surveyor, plaintiff confessed surrender of 3 links of property to the road. Hence defendant filed counter claim with respect to 5.250 cents of land in survey No.1197/1 of Palluruthy village which she obtained as per Sale Deed No.2502/1983. The plaintiff taking advantage of the situation that defendant is not R.S.A.No.855/2013 **4** residing in the property and her husband is working in military service, demolished some portion of compound wall of the defendant on the northern and middle portion. A permanent prohibitory injunction is also sought for restraining the plaintiff from trespassing into the counter claim property. 4. Plaintiff filed replication to the counter claim contending that the compound wall was constructed in December, 2003 and damage to the compound wall is due to low quality of concrete slab and the attempt to trespass into the defendant's property is also denied. 5. PW1 examined and Exts.A1 and A2 marked from the side of the plaintiff. DWs 1 and 2 examined from the side of defendant. Exts.C1, C2 and C2(a) were also marked. 6. On evaluating the facts and circumstances and evidence adduced, learned Munsiff found that there is evidence to prove that counter claim property is clearly demarcated from plaint 'A' schedule property and defendant is in possession of counter claim property. Accordingly, the suit was dismissed and counter claim was decreed granting permanent prohibitory injunction restraining the plaintiff and men from trespassing into R.S.A.No.855/2013 **5** the counter claim schedule property and committing any waste thereon or demolishing the eastern compound wall of the counter claim schedule property. The plaint A schedule property and counter claim schedule property are demarcated as per Ext.C2(a). Ext.C2 report and C2(a) plan are appended to the decree. 7. Against which, A.S.No.26/2009 was filed before the Subordinate Judge's Court, Kochi. The learned Sub Judge, by the impugned judgment, confirmed the judgment and decree passed by the learned Musniff and dismissed the appeal. Aggrieved by the same, appellant/plaintiff approaches this Court in this Regular Second Appeal. 8. At the time of admission, following substantial question of law has been raised by this Court, which reads thus: When the very same common assignor executes one assignment deed in favour of the plaintiff/appellant herein showing all the four side measurements and when the very same assignor executes another assignment deed in favour of the defendant where also, four side measurements are shown, are the courts below correct in holding that the plaintiff should be satisfied with the extent of four cents ignoring the four side measurements shown in the documents? 9. According to the learned counsel for the R.S.A.No.855/2013 **6** appellant/plaintiff, the trial court in a complex suit seeking for recovery of possession along with permanent prohibitory injunction and mandatory injunction listed the suit for trial immediately after Ext.C2 and C2(a) commission report and sketch have been filed denying an opportunity to the plaintiff who has got very serious objection with regard to the measurements carried out. It has been contended before the first appellate court also about the denial of opportunity to the plaintiff to take steps for setting aside the survey commission report and plan along with the additional documents and without considering his petition to receive additional documents and the contention regarding the denial of opportunity to properly conduct the case after filing the survey commission report, the first appellate court merely confirmed the judgment and decree passed by the trial court. It is also his contention that the suit filed by the plaintiff has been dismissed by the learned Munsiff finding that the plaintiff is already in possession of 4 cents of land acquired by him as per Ext.A1. But the counter claim has been decreed with respect to a greater extent of property than the sale deed covered by defendant even in the absence of producing the title deed of the defendant. According to him, that R.S.A.No.855/2013 **7** is illegal and irrational. It is also his contention that as per Ext.C2(a) there is decrease in extent of the plaintiff's property and ignoring that the suit was dismissed and counter claim was granted with respect to an excess land not covered by title deed of the defendant. It is also contended by the learned counsel that special list system has been implemented not with an intention to harass the parties, but to promote their interests. He placed reliance on Sadanandan v. Sudarsanan [1982 KLT SN 29 (C.No.45)] and Nabeesath Beevi v. Zeemath Ummal [1980 KLT 749] . 10. It is also the appellant's contention that he has filed a petition as I.A.No.1776/2012 for receiving additional court fee for challenging the decree of counter claim passed in favour of the respondent/defendant. But the first appellate court finding that appellant cannot challenge dismissal of suit and grant of counter claim by filing single appeal and dismissed the petition and that has caused great prejudice to him. He would also contend that the petition filed by the appellant to receive additional documents was also not considered by the appellate court and in effect according to him a fair opportunity was denied to the plaintiff to conduct the case before the two lower R.S.A.No.855/2013 **8** forums. Hence the learned counsel seeks for a remand of the case to the trial court. 11. The learned counsel for the respondent/defendant on the other hand would contend that the courts below concurrently found that plaintiff is already in possession of the property covered by his document and there is a compound wall separating the plaintiff's property and the defendant's property and hence the relief of recovery of possession sought for by the plaintiff is not covered by the document relied on by the plaintiff and hence there is no reason whatsoever to interfere with the concurrent findings entered into by the learned Munsiff and the first appellate court. 12. The first contention is with regard to denial of opportunity to the plaintiff after filing the commission report for taking pre-trial steps since the case according to him has been included in the special list within short time of ten days of filing Exts.C2 and C2(a) commission report and plan. The learned counsel placed reliance on Nabeezath Beevi v. Zeemath Ummal [1980 KLT 749] in this context, wherein, Division Bench of this Court held that certain formalities are prescribed to include a R.S.A.No.855/2013 **9** case in special list. Division Bench emphasized that those formalities are to be followed so that, parties and their counsel get sufficient time and convenience to proceed with the trial on the posting date. 13. But on going through that decision, it could be seen that the fact situation is entirely different. In that case, the learned Subordinate Judge has not actually included the case in the special list and the case was posted for pre-trial steps on 21.08.1976 after framing issues on 24.07.1976. On 21.08.1976, there was no sitting and case was taken up on 23.08.1976 and posted to 18.10.1976. On that day, stating that plaintiff and advocate was absent case was proceeded with dismissing the suit. Whereas in the order, the Subordinate Judge stated that case was included in the special list on 18.10.1976. Application filed under Order IX Rule 2 to restore the suit also dismissed. It was in the above context dictum above referred was laid down by the court. 14. In Sadanandan v. Sudarsanan [1982 KLT SN 29 (C. NO. 45), the Division Bench has dealt with the purpose of list system and adjournment when to be granted in a case included in special list etc. R.S.A.No.855/2013 **10** 15. On going through the B Diary of the trial court in the case on hand, it is seen that commission report was filed on 10.10.2008. Court on that date directed to file objection, if any, to commission report within two days and take pre-trial steps within five days and case adjourned to 15.10.2008. On that date, both sides prayed for objection to commission report and pretrial steps and case adjourned to 18.10.2008. On 18.10.2008, it has been recorded that objection to commission report being filed and suit listed for trial to 04.11.2008. On that day, Presiding officer was on leave and case adjourned to 10.11.2008. It is on that day, PW1 was examined and documents were marked and plaintiff's evidence closed and case posted for defendant's evidence to 13.11.2008. 16. So proceedings in this case would go to show that after the commission report has been filed, both side sought time for filing objection to the commission report and that was allowed by the court and thereafter case included in special list also. There is nothing to show that either plaintiff or defendant filed any petition to remove the case from the list or filed any petition seeking adjournment for starting trial. Suit was filed in the year 2004 and evidence started after four years in 2008. So R.S.A.No.855/2013 **11** there seems to have substantial compliance of the special list system by the learned Munsiff and the decisions cited above have no direct bearing to the case in hand. 17. Moreover, on going through the records, it could be seen that objection to Exts.C2 and C2(a) commission report and survey plan of the plaintiff is only that the extent of property in his possession is only 3.5 cents and not 4 cents. He has not filed any petition to set aside the commission report and plan (Exts.C2 and C2(a)). But now the plaintiff is contending about denial of opportunity to take steps to set aside the commission report. Without filing any such petition at proper time now plaintiff cannot seek for remand of the case to fill up lacuna. (See Shivakumar v. Sharanabasappa [2020 (2) KLT ONLINE 1144 (SC): AIR 2020 SC 3102; Gopalakrishnan v. Ponnappan [2021 (5) KLT 751]; Eliyamma v. Deputy Collector [2021 (1) KLT 417]). 18. It is also very pertinent to note that commissioner was examined from the side of the defendant as DW2 and Exts.C2(a) plan and Ext.C2 report was marked. DW2 categorically stated that there was no shortage in extent of land of plaintiff in measurement and further that 445 square links of property found in excess is in the compound of defendant. On the R.S.A.No.855/2013 **12** southern boundary of plaintiff as per the title deed measurement is 11.5 Links but on measurement only 11 links was found. During cross examination, DW2 deposed that .5 links is in the possession of the defendant. But on the eastern side of plaint schedule property as per Ext.A1, the measurement is 12.7 links but on measurement, it was found to 12.8 links. The northern and western boundary measurements are tallying with the measurements in the title deed. There is no difference in the total extent also. So the question for consideration is whether the plaintiff can lay any claim over the excess land of 445 square links found in the defendants compound. 19. The learned counsel for the plaintiff would content that after measuring the property of the defendant (5.250 cents) the measurement of plaintiff's 4 cents ought to have been made since it is after the sale of property to the defendant that the common owner sold 4 cents property to the plaintiff. So according to him, the excess 445 links would have been on his eastern side. But the property was sold to the plaintiff after sale to the defendant, though on the same day. It is in this context the relevancy of boundary wall separating the defendant's property and plaintiff's property assumes importance. According R.S.A.No.855/2013 **13** to the plaintiff, it was constructed in the year 2003. But the specific case of the defendant is that it was constructed in 1992. Anyway, along with the suit plaintiff did not take out a commission to ascertain the old-age of the compound wall. At the instance of the defendant Ext.C1 report was filed. In point No.2, commissioner was asked to report the old-age of the compound wall. 20. Though commissioner could not state age of the compound wall precisely, he categorically reported that it is not a new one. It is also reported that it has a dreary look and dry fungus were seen on the wall. It is in the context, the attitude of the plaintiff to be taken note of. Though he alleged that defendant constructed compound wall forcibly encroaching into plaint A schedule property in December 2003, the suit was filed on 03.09.2004. The defendant has got a specific case that he constructed the compound wall in the year 1992 in the presence of plaintiff and plaintiff never objected the construction of the wall. It is also his contention that in the year 2003 plaintiff started construction of new house demolishing the old house and sun shade of the new house projected into the defendant’s property and they objected the same and plaintiff demolished the R.S.A.No.855/2013 **14** encroached portion and thereafter plaintiff started causing obstruction to them. Ext.C1 report of the commissioner also would show that a new house is under construction in the plaint schedule property made of RCC roofing. That fact coupled with the nature of compound wall reported by the commissioner would probabilise the case of the defendant that the compound wall was constructed much earlier and not in 2003 as alleged by the plaintiff. 21. Admittedly the excess land of 445 square links of property is lying within the compound wall of the defendant's property. There is no shortage in extent of the plaintiff's property also. Ext.A1 title deed and tax receipt Ext.A2 confer him with title of 4 Cents of property only. So the fact that defendant has an excess land of 445 square links within his boundaries would enable the plaintiff to recover that land is the question. Plaintiff can recover that land only on the strength of his title or possession. Possession obviously is with the defendant, since the excess land is within his compound wall. Recovery on the strength of title could be allowed only if plaintiff could prove his title over the excess land in possession of the plaintiff. The learned counsel for the plaintiff in this context bring to my R.S.A.No.855/2013 **15** ## attention Chandrakumar v. Narayanan Bahuleyan and Another [2022 (2) KHC 884]. Paragraph 17 was highlighted which reads thus: “ In the present case, the description of boundaries is clear from the title deed. The boundaries were clearly found by the Commissioner on inspection of the property. The property of the plaintiff is nilam. However, coconut trees have been planted in a portion of the land. The property of the defendant is admittedly lying on a higher level and it is a 'purayidam'. Admittedly, a pathway (really a wide ridge) passes through the southern side of the plaintiff's property. The Commissioner found that ridge and fixed the southern boundary. There is no dispute regarding the location of that ridge in the Commissioner's plan. The description of boundaries are certain, identifiable and capable of fixing the boundary without any dispute. In such circumstances, the extent as shown in the title deed and as found in the re-survey is not very material in fixing the boundary between the property of the plaintiff and the property of the defendant. Even if a person was found to be having more extent of land than that shown in his title deed, however, within the four boundaries shown in the title deed, his neighbour cannot aspire for getting that excess land, unless the latter has title to that excess extent.” 22. In the present case, there is a compound wall separating the property of the plaintiff and defendant. It has come out that it is not a new one. Plaintiff has 4 cents of property in his possession. The title held by him is also with respect to 4 cents. So as has been held in the decision, even if R.S.A.No.855/2013 **16** the defendant is found to be having 445 squire links of property in excess of his title deed, that is not a reason to aspire the plaintiff for the excess 445 square links of property since he has no title to that excess land. 23. It is true that the 1[st] appellate court dismissed the petition to receive additional court fee for the reason that a separate appeal ought to be filed against the decree in the suit and decree in counter claim. It is also found that the appellant cannot be challenge both by filing a single appeal. But a Division Bench of this Court in Cholapilakkal Abdul Nazir v. Kuttanparambath K. Lakshmana and another [2016 3 KLJ 429] considered the question on reference as to whether a single memorandum of Regular First Appeal is maintainable against a composite decree in the suit and in the counter claim and it has been held that filing of separate appeals against the case and the counter claim is only a procedural aspect which has been specifically provided in the Code of Civil Procedure. What is contemplated is only an appeal against the decree where the case and counter claim are disposed of by judgment in the same suit followed by a composite decree, there is only one decree and not separate decrees as in the case of decrees being drawn in R.S.A.No.855/2013 **17** respect of suit disposed of by a common judgment. In such circumstances, insisting for a separate appeal for a suit and counter claim by the same party will only cause unnecessary heartship and create unnecessary procedural hurdle to advance. It was held that a memorandum of Regular First Appeal filed impugning the composite decree in the suit and counter claim is properly constituted and is maintainable. So the dismissal of I.A.No.1776/2012 by the 1[st] appellate court is not appear to be legal. 24. However, question is whether the dismissal of that I.A has caused any prejudice to the appellant/plaintiff. Before the first appellate court itself defendant raised a contention that since no appeal has been filed against the counter claim, the appeal is barred by the principles of res-judicata. Rightly the first appellate court found that counter claim is regarding possession of property, it will not operate as res-judicata in a suit for recovery of possession on the strength of title (See: Nagabhushanammal v. C.Chandikeswaralingam [AIR 2016 SC 1134 : (2016) 4 SCC 434]; The Jamia Masjid v. K.V. Rudrappa (Since Dead) by LRs. & Ors. [AIR 2021 SC 4523 : 2021 (5) KLT ONLINE 1120 (SC)] . R.S.A.No.855/2013 **18** 25. In the present case, counter claim filed by the defendants is only for a permanent prohibitory injunction. It has already been found that the plaintiff is not entitled for a decree of recovery possession of the excess 445 square links property found in possession of the defendant. It has also come out that the excess square links property is bounded by the compound wall of the defendant. It has been found concurrently by the courts below that there are attempts on the part of the plaintiff to trespass into the property of the defendant. The claim of the plaintiff over the excess land also supports the apprehension of the defendant since the plaintiff has no legal right over the excess land in the possession of the defendant. It cannot be found that the learned Munsiff went wrong in allowing the counter claim though it has been contended by the learned counsel for the plaintiff that the defendant has not produced any document to prove their right over the excess land since it has come out that it is in his possession bounded by the compound wall. The plaintiff could not establish his right over the excess land. Hence, the decree of injunction passed against the plaintiff also cannot be said as illegal or improper. In the above back drop, I find that the appeal is devoid of R.S.A.No.855/2013 **19** any merit and hence, dismissed. In the facts and circumstances, parties shall bear their respective costs. Sd/- **M.R.ANITHA** Shg/rps **JUDGE**