Gopinathan Nair v. Ponnu Amma and others (RSA Nos. 313 & 316 of 2010)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 RSA.No. 313 of 2010() --------------------AS.57/2008 of SUB COURT,KOCHI OS.243/2007 of PRINCIPAL MUNSIFF COURT, KOCHI .................... ## APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- GOPINATHAN NAIR, AGED 55 YEARS, S/O.PARAMESWARAN, KOZHIPPURATHU VEEDU, NAYARAMBALAM P.O., KOCHI - 682 509. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. SMT.PONNU AMMA, AGED 65 YEARS, W/O.GOPALAKRISHNAN, KODIKKATTU, NAYARAMBALAM VILLAGE, NAYARAMBALAM MURI, KOCHI TALUK, ERNAKULAM DISTRICT. 2. ANIL KUMAR, AGED ABOUT 35 YEARS, S/O.PONNU AMMA, RESIDING AT -DO- -DO- 3. JAYACHANDRAN, S/O.GOPALAKRISHNAN, AGED 39 YEARS, RESIDING AT -DO- -DO- 4. RATNAMANI, D/O.KODIKKATTU RAMAN MENON, AGED ABOUT 55 YEARS, KODIKKATTU MURI, NAYARAMBALAM VILLAGE, KOCHI TALUK, COCHIN - 682 509. ADV. SHRI M.P.RAMANATH FOR CAVEATORS THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2010, ALONG WITH RSA NO. 316 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A.Nos.313 & 316 of 2010 -------------------------------------Dated this the 25[th] day of March, 2010.** ## **JUDGMENT** These appeals arise from common judgment and decree of learned Sub Judge, Kochi in A.S.Nos.57 and 62 of 2008 confirming dismissal of the suit and the decree on counter claim by the learned Principal Munsiff, Kochi in O.S.No.243 of 2007. It is not disputed that plaint A schedule property, five (5) cents as per assignment deed No.454 of 1977 belonged to and is in possession of appellant/plaintiff. Plaint B schedule property, 23 cents originally belonged to appellant's mother, Devaki Amma as per document No.81 of 1950 and on her death it devolved on appellant and his sister, Rajamani. The latter assigned her right to appellant/plaintiff as per document No.2257 of 2004. Thus appellant became the absolute owner in possession of plaint B schedule. Plaint B schedule is situated on the north of plaint A schedule and in between there is the disputed pathway. It is the case of appellant that on the west of plaint A schedule which is situated on the south of the disputed way respondents/defendants have 13 cents. According to the appellant, width of the disputed pathway is only 6 ½ links. He constructed compound wall on the west and east of the plaint B schedule (situated on the north of the disputed way) but his attempt to construct compound wall on the south of plaint B schedule (ie. on the north of the way) did not succeed since respondents obstructed it. Appellant prayed for a decree for prohibitory injunction against respondents **RSA Nos.313 & 316 of 2010** 2 interfering with his right and possession over plaint A and B schedules. Respondents while resisting the suit made a counter claim. According to them width of the pathway is not 6 ½ links as pleaded by the appellant but it is two (2) metres and the said pathway does not form part of plaint A or B schedules belonging to the appellant. Appellant trespassed into the northern part of the pathway and constructed compound wall at some length. The pathway starts from public road on east and reached property of respondent No.4 on the extreme west. It is the contention of respondents that in the resurvey which was conducted in the year 1985 and finalised accordingly width of the disputed pathway is shown as two (2) metres. In the above circumstances respondents prayed for a decree for fixation of boundary of the pathway scheduled in the counter claim as per revenue records and for mandatory injunction to direct appellant to demolish and remove that part of the compound wall constructed by him trespassing into the said pathway. There was also a prayer for prohibitory injunction restraining the appellant, his agents or men from causing any obstruction whatsoever in the pathway and not to interfere with its free user. Appellant filed a replication to the counter claim denying the allegations in the written statement and counter claim and contending that at any rate area of the disputed pathway is only 1.5 cents. Learned Principal Munsiff came to the conclusion that even excluding the disputed pathway, appellant is in possession of more extent in plaint A and B schedules than what he is entitled as per the **RSA Nos.313 & 316 of 2010** 3 documents of title relied on by him. Learned Principal Munsiff found from the report of the Advocate Commissioner as well as other relevant documents that width of the disputed pathway is two metres and that there is encroachment into the northern portion of the said pathway at the instance of the appellant. Accordingly the suit was dismissed and the counter claim was allowed. First appellate court confirmed the findings, judgment and decree of learned Principal Munsiff. Hence these appeals. Learned counsel for appellant has raised the following substantial questions of law: i. Whether the finding of courts below based on the resurvey record is sustainable in law? ii. Whether counter claim for fixation of boundary without a prayer for recovery of possession is maintainable and allowable? iii. Whether counter claim ought to have been dismissed for nonimpleadment of necessary parties? iv. Whether it was possible for the courts below to grant a decree for prohibitory injunction in respect of an anticipated apprehension of the respondents? **RSA Nos.313 & 316 of 2010** 4 Learned counsel placing reliance on the decisions on the point contended that the finding of courts below are legally and factually unsustainable. Learned counsel for respondents contended that finding entered by the courts below does not merely rest on revenue records. Courts below have placed reliance on the respective documents of title and report of the Advocate Commissioner and found in favour of the respondents. So far as the claim for fixation of boundary without the prayer for recovery of possession is concerned, learned counsel contends that in the nature of the allegations made in the counter claim what was required was only mandatory injunction to direct the appellant to remove that portion of the compound wall which encroached into the pathway and no recovery of possession was required and hence courts below are justified in granting the decree for fixation of boundary as well as mandatory injunction. So far as the grant of prohibitory injunction to prevent future trespass is concerned, learned counsel would contend that to prevent multiplicity of suit and viewing the matter in a practical manner it is within the power of the court to grant prohibitory injunction as well. 2. Facts which are not disputed are that plaint A schedule belonged to the appellant as per Ext.A3 and as per that assignment deed the extent of land belonging to the appellant is only five (5) cents. Over plaint B schedule appellant claims title and possession as per Exts.A1 and A2. Entitlement of appellant as **RSA Nos.313 & 316 of 2010** 5 per the said documents is only 23 cents. The above is clear from the plaint schedule also where extent of plaint A schedule is given as five (5) cents and that of plaint B schedule is given as 9.31 ares which is equivalent to 23.103 cents. Ext.B7 is the resurvey plan. The resurvey, it is not disputed was conducted in the year 1985. It is also not disputed that it has become final. No doubt, the mere fact of resurvey is not by itself sufficient to decide title. But when deciding the issue regarding title fact of resurvey is also relevant with other evidence. As per Ext.B3, copy of Basic Tax Register and Ext.B1, copy of resurvey plan plaint A schedule falls in R.S.No.58/4 while plaint B schedule falls in R.S. No.58/2. Property of respondent Nos.1 to 3 (ie. 13 cents on the west of plaint A schedule) comes in R.S.No.58/5. Property belonging to respondent No.4 on the extreme west (west of B schedule) falls in R.S.No.58/1. The disputed pathway comes in R.S.No.58/3 and as per Ext.B3, its width is two (2) metres extending east-west. Advocate Commissioner has shown the properties and the disputed pathway and pointed out that on the northern side of the pathway there is encroachment at the instance of appellant. At that portion appellant is shown to have constructed a compound wall. Ext.B8, photograph also reveals that there is trespass into the pathway. **RSA Nos.313 & 316 of 2010** 6 3. It is argued by learned counsel for appellant that going by Ext.B7, assignment deed in favour of respondent Nos.1 to 3 concerning the land comprised in R.S.No.58/5, their entitlement is only for 13 cents and pathway having an extent of one (1) cent but now extent of the pathway is 1.500 cents. That, the pathway was in existence even before Ext.B4, partition deed of the year 1120 ME is evident from Ext.B4 where northern boundary of plaint A schedule is described as the lane. Argument of the learned counsel is that the area of the pathway is confined to only one (1) cent as per Ext.B7. But it is not as if one (1) cent which formed pathway alone was assigned to respondent Nos.1 to 3 as per Ext.B7. 13 cents and one (1) cent being the way (then) was assigned to respondent Nos.1 to 3. Though entitlement of appellant as per Ext.A3 in respect of plaint A schedule is only five (5) cents, resurvey as per Ext.B3 shows that he has now 5.195 cents. While as per Exts.A1 and A2 entitlement of appellant in respect of plaint B schedule is only 23 cents, as per Ext.B3 even excluding the disputed pathway it is now 23.103 cents. Therefore no portion of the property belonging to the appellant has been used for widening the pathway so that its extent now is 1.500 cents. Learned counsel for appellant has a contention that revenue records itself is not sufficient to confer title and to buttress his argument placed reliance on the decision of this Court in **Kalukurumban v. Sarojini Amma (1997 (1) KLT 481).** . That resurvey has been completed is not disputed by the appellant and it is interesting **RSA Nos.313 & 316 of 2010** 7 to note that in the plaint schedules appellant has given the resurvey numbers and not the old survey numbers. Advocate Commissioner in Exts.C1 and C1(a) has stated that there is encroachment on the east and west of the disputed pathway. He has also stated that there is encroachment into the pathway on its northern side (south of plaint B schedule belonging to the appellant). Thus on the evidence on record courts below found in favour of title claimed by the respondents and that appellant has encroached into the disputed pathway. Since that finding is based on the evidence on record it does not involve any substantial question of law. 4. Next question arises whether in the absence of a prayer for recovery of possession fixation of boundary could be granted. Reliance is placed on the decision of this Court in **Anjil Vellachi and others v.** ## **Mamuni Bhaskaran alias Vattayil Bhaskaran (2009 (3) KHC 728)** (paragraph No.6). This Court held that prayer for fixation of boundary cannot be a shortcut to overreach other contentions regarding title and possession. ## This Court in **Bapputty @ Sydali & others v. Cheriakutty @ Veerankhani Rawther (1990 (1) KLJ 218)** has held that it is no decision to fix the boundary and then ask the parties to settle other disputes regarding title and possession. But in this case it is not merely a decree for fixation of **RSA Nos.313 & 316 of 2010** 8 boundary of the pathway that is asked for, there is a prayer for mandatory injunction also to direct appellant remove the compound wall which encroached into the disputed pathway. Then the question is whether respondents ought to have asked for recovery of possession or on the facts of the case prayer for mandatory injunction is sufficient. Recovery of possession is required when the appellant has trespassed into and taken possession of the property and that possession has become settled. 'Possession' in legal parlance means the physical possibility of a person dealing with the property as he likes and it also implies some actual power over the object possessed and some amount of will to avail oneself of that power. There must be intention on the part of possessor to exercise control over the subject matter and to exclude others from it (See **Anies v. Rapai (1986 KLT 1204)** ). Mere fact that in a portion of the disputed pathway appellant has constructed compound wall does not mean that he is in settled possession of the disputed area. Hence relief of mandatory injunction directing appellant to remove the compound wall (which would amount to restoration of the pathway) is sufficient. In the light of the prayer for mandatory injunction it was well within the right of respondents to have asked for fixation of boundary. The decision relied on by learned counsel has no application to the facts of this case. In view of the settled position of law the point raised does not involve any substantial question of law for consideration of this Court. **RSA Nos.313 & 316 of 2010** 9 5. So far as non-impleadment of necessary parties in the counter claim is concerned, contention is that owners of property on the south of plaint A schedule ought to have been impleaded. They are not necessary parties as their presence is not required to effectively adjudicate the dispute involved in this case. 6. The last point raised is that trial court went wrong in granting a decree for prohibitory injunction which is to work out in future after the decree for mandatory injunction and fixation of boundary is executed. Reliance is placed by learned counsel on the decision in **Sarojini v. Ramanunni Moosath** **(2007 (3) KHC 51)** where in paragraph No.11, in respect of property in the possession of defendant and where there was a prayer for recovery of possession this Court held that injunction with respect to future trespass cannot be granted. That was a case involving recovery of possession of property from the defendant after execution of the sale deed. That decision has to be confined to the facts of that case. Under Section 38 of the Specific Relief Act, 1963 which deals with prohibitory injunction, one object of granting prohibitory injunction is to prevent multiplicity of judicial proceeding. That view was taken by the Madras High Court in **Shanmugavel Goundan and others v. Venkitaswami Asari (AIR 1936 Madras 202)** . It has been held that in **RSA Nos.313 & 316 of 2010** 10 matters of issuing injunctions the law cannot make over nice distinctions and refuse the relief merely because there is a bare possibility that the evil against which an injunction is sought may be avoided. Proceeding upon practical views of human affairs, the law will guard against risks which are so imminent that no prudent person would incur them although they do not amount to absolute certainty of damage. Here, respondents have an apprehension that in the absence of decree for prohibitory injunction even after the decree for fixation of boundary and mandatory injunction are executed appellant might trespass into the pathway and commit mischief. If that happened respondents will have to go for another suit for recovery of possession and that process will continue forever. I am not inclined to think that law is helpless in such a situation to protect respondents from future, possible trespass by granting a decree for prohibitory injunction. That is what the courts below have done and that is in accordance with Section 38 of the Specific Relief Act. Since the law provides for that, contention of learned counsel for appellant does not involve any substantial question law. 7. I have gone through the judgments under challenge and the copy of records given to me for perusal. I have also heard learned counsel on both sides at length. I am satisfied that no substantial question of law is involved requiring admission. **RSA Nos.313 & 316 of 2010** 11 Resultantly these appeals fail and are accordingly dismissed in limine. I.A.No.800 of 2010 in R.S.A.No.313 of 2010 & I.A.No.804 of 2010 in R.S.A.No.316 of 2010 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**