Jagadamma Pillai and others v. Gopalan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932** ## **SA.No. 390 of 1999(D)** **-------------------------------** **AS.63/1993 of ADDL.SUB COURT,KOTTAYAM OS.288/1990 of MUNSIFF COURT, CHANGANACHERRY** **....................** ## **APPELLANT(S): RESPONDENT/PLAINTIFFS** **----------------------** **1. JAGADAMMA PILLAI, D/O. PARVATHY PILLAI, MANGALATH VEEDU, KADAYANIKKAD MURI, VELLAVOOR VILLAGE.** **2. SUNDARAVALLY PILLAI, D/O. JAGADAMMA PILLAI, OF DO. DO.** **3. ARAVINDAKSHAN PILLAI, S/O. JAGADAMMA PILLAI, OF DO. DO.** - **BY ADV. SRI.M.NARENDRA KUMAR** ## **RESPONDENT(S): APPELLANT/DEFENDANT** **------------------------** **1. GOPALAN NAIR, NIECE OF KESAVAN NAIR, PULITHARA VADAKKE MURIYIL VEEDU, KADAYANIKKAD MURI, VELLAVOOR VILLAGE (DIED)** - **ADDL. 2:- MIRA G.NAIR, W/O. BABU, T.G.ROOM NO.12/19 GATE NO.5 MALWANI COLONY MALAD WEST BOMBAY 400095.** **R2 BY ADV. SRI.H.B.SHENOY, SRI.B.ASHOK SHENOY.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON 03/06/2010 DELIVERED THE FOLLOWING:** ## **P.BHAVADASAN, J.** ------------------------------------SA No.390 of 1999 ------------------------------------Dated 3rd June 2010 ## Judgment The plaintiffs, who had their suit dismissed by the First Appellate Court, are the appellants. The parties and exhibits are hereinafter referred to, as they are available before the Trial Court. 2. The plaintiffs claimed that they obtained the plaint schedule property as per Ext.A1 gift deed dated 03.06.1981. The defendant is in possession and enjoyment of 52½ cents of property situated on the eastern side of the plaint schedule property. According to the plaintiffs, on the eastern side of the plaint schedule property, there is a boundary line evidenced by kalluvara and that forms part of the plaint schedule property. There are several trees, standing on the boundary line and near the boundary line of the plaint schedule property. The defendant raised unfounded claims on those trees and intends to cut and remove those trees. Therefore, the plaintiffs were SA 390/1999 2 constrained to lay the suit. 3. The defendant resisted the suit, contending that the plaintiffs have to prove their right and possession over the plaint schedule property. He disputed that the kalluvara belongs to the plaintiff. According to him, the kalluvara is a common boundary and he too has rights over it. The trees standing on the kalluvara, cannot be said to be belonging to the plaintiffs. On the basis of the above contentions, he prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A5 from the side of the plaintiffs. The defendant examined DWs 1 to 3 and had Ext.B1 marked. C1 and C2 are respectively, the Commissioner's report and rough sketch. 5. The Trial Court, on an appreciation of the evidence, came to the conclusion that the so called kalluvara, which forms the eastern boundary of the plaint schedule property, falls within the property obtained by the plaintiffs and accordingly, granted a decree in their favour. SA 390/1999 3 6. The defendant took up the matter in appeal. The Appellate Court was of the view that going by the evidence on record, it is clear that the boundary was common to both the properties and therefore, the trees standing on the boundary line, cannot be exclusively claimed by the plaintiffs. The lower Appellate Court relied on the decision reported in _**Achuthan v. Sumitra**_ (1987(1) KLT 457) and took the view that it was not possible to conclude that the plaintiff had exclusive right over the disputed trees and so, the trees belong to the plaintiffs and defendant in common. On the basis of these findings, the Trial Court decree was reversed. That brings the plaintiffs before this Court. 7. The learned counsel for the appellants raised two points for consideration before this Court. The first point is that according to the learned counsel, a reading of Ext.B1, which is the document of title of the defendant clearly shows that the kalluvara, which forms the eastern boundary, falls within the property obtained by the plaintiffs SA 390/1999 4 as per Ext.A1. The second point is that even assuming that the trees standing on the boundary line are common to both the plaintiffs and the defendant, the plaint has clearly stated that there are other trees standing near the boundary line, regarding which there is no finding by the lower Appellate Court. 8. True, a reading of Ext.B1 would indicate that the defendant has property on the eastern side of the kalluvara. But, one cannot omit to note that the evidence is overwhelming including that given by the plaintiffs that the kalluvara runs to a considerable distance towards all the sides and is treated as common boundary by all the people holding lands on either side of the same. 9. The evidence adduced by the defendant also shows that the kalluvara which separates several properties running in between the two properties is treated as the common boundary. 10. In the light of the above facts, the claim of the plaintiffs regarding exclusive right to the kalluvara may not be entertainable. SA 390/1999 5 11. However, there seems to be considerable force in the second contention raised by the learned counsel for the appellants. A commission was taken out to ascertain the location of trees from the site. The Commissioner has filed Ext.C1 report and a rough sketch as Ext.C1(a). The Commissioner has located the kalluvara and has done nothing more. He has pointed out that the kalluvara has an average width of 2 ft. In the application filed by the plaintiffs for taking out commission, there was a specific demand that the Commissioner should ascertain the position of various trees standing on the kalluvara and near the kalluvara. But, surprisingly, that has not been noticed by the Commissioner in his report. 12. The contention raised on behalf of the defendant that the plaintiffs have admitted that all the trees are standing on the kalluvara, cannot be accepted. That it is not so, can be seen from a reading of the plaint. Paragraph 5 of the plaint says that there are trees standing on the kalluvara and near the kalluvara. Even assuming that going by the settled position, the trees standing on the SA 390/1999 6 kalluvara are common properties, unless a person is able to show that they were planted by him, the issue regarding the trees that are standing near the kalluvara assumes a different proposition. As far as those trees are concerned, it is difficult to understand how the defendant can lay claim. 13. The definite allegation in the plaint is that the defendant is trying to trespass into the property and to cut and remove those tees. Therefore, one of the main issues in the case is whether there are any trees standing near the eastern boundary or near the kalluvara. To this extent, the Commissioner's report is not of much help at all. When as examined as PW2, the Commissioner has conceded that he has not noted the position of the trees as required by the plaintiffs. 14. This aspect has been lost sight of by the courts below. To that extent, the appeal has to succeed. In the result, this appeal is partly allowed. The judgment and decree of the lower Appellate Court are set aside to the extent of not considering the trees standing within the kalluvara and the matter is remanded for the purpose of 7 SA 390/1999 ascertaining whether any trees are standing near the kalluvara as alleged in the plaint and the reliefs the plaintiffs are entitled to in respect of those trees. The parties shall appear before the Trial Court on 29.06.2010. The parties will be at liberty to adduce further evidence in this matter, confining to the above aspect alone. The Trial Court shall dispose of the matter as expeditiously as possible, at any rate, within three months from the date of appearance of the parties before the said Court. ## **P.BHAVADASAN, JUDGE** sta SA 390/1999 8