Jayan C.V v Premaja A and others (RSA No. 96 of 2024)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946** **RSA NO. 96 OF 2024** **AGAINST THE JUDGMENT AND DECREE DATED 16.12.2023 IN AS NO.58 OF 2019 OF SUBORDINATE JUDGE'S COURT, KANNUR ARISING OUT OF THE JUDGMENT AND DECREE DATED 27.02.2019 IN OS NO.278 OF 2016 OF MUNSIFF COURT, KANNUR** ## **APPELLANT/1ST RESPONDENT/1ST DEFENDANT:** **JAYAN C.V, AGED 66 YEARS S/O LATE KUMARAN, RESIDING AT "POOJA" CHELORA, P.O. VARAM, KANNUR TALUK, KANNUR DISTRICT, PIN - 670594** **BY ADVS.J.R.PREM NAVAZ SUMEEN S. MUHAMMED SWADIQ O.MOHAMED BASIL KOYA THANGAL** ## **RESPONDENTS/APPELLANT & RESPONDENTS 2 & 3/PLAINTIFF &** **DEFENDANTS 2 & 3:** **1 PREMAJA. A AGED 68 YEARS, W/O N.C.SADANAND, RESIDING AT "PREMANAND", 14B, SACHITHANAND NAGAR, NARELA SHANKARI, BOPAL 23, MADHYA PRADESH, THROUGH HER POWER OF ATTORNEY HOLDER, BABU ARIPPA, S/O ARIPPA DAMODARAN, AGED 57 YEARS, PENSIONER, RESIDING AT PRANAVAM, KARAYAN ROAD, P.O.CHOVVA, KANNUR DISTRICT, PIN - 670006** **2 K.M. MURALEEDHARAN AGED 56 YEARS, RESIDING AT "MURALILAYAM", MATHUKOTH, P.O. VARUM, KANNUR, PIN - 670594** **3 PRADEEPAN MADATHIL AGED 53 YEARS, RESIDING AT "JAPA" MATHUKKOTH, P.O. VARUM, KANNUR DISTRICT, PIN - 670594** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR** **ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.S.A.No.96 of 2024** 2 ## **C.S.SUDHA, J.** **-----------------------------R.S.A.No. 96 of 2024 ----------------------------------------------Dated this the 29th day of May 2024** ## **J U D G M E N T** This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the first defendant/appellant is against the judgment and decree dated 16/12/2023 in A.S.No.58/2019 on the file of the Subordinate Judge's Court, Kannur, which appeal in turn is against the judgment and decree dated 27/02/2019 in O.S.No.278/2016 on the file of the Munsiff Court, Kannur. The parties and the documents will be referred to as described in O.S.No.278/2016. 2. The suit was filed by the plaintiff/first respondent against the defendants, who are the appellant and respondents 2 and 3 respectively, seeking declaration and consequential injunction. According to the plaintiff, the plaint schedule property **R.S.A.No.96 of 2024** 3 originally belonged to his father, namely, Arippa Damodaran, as per registered sale deed no.147/1962, Sub Registrar Office, Kannur. After the demise of Damodaran, his legal heirs partitioned the plaint schedule property along with a larger extent of property and the plaint schedule property was allotted to the share of the plaintiff. The plaintiff has been residing in Bhopal for the past more than 45 years and hence visits the plaint schedule property once in a year or so. When the plaintiff came to her property in March 2016, she noticed that the defendants were trying to trespass into her property and ply vehicles through the eastern side of her property without her consent. The defendants have no right to trespass into her property or convert any portion of the same into a pathway. Hence on 02/04/2016 she caused to issue a lawyer notice calling upon the defendants to stop their trespass into the property. Defendants 2 and 3 sent a reply notice raising untenable contentions. Hence, the suit seeking a decree of permanent prohibitory injunction for restraining the defendants **R.S.A.No.96 of 2024** 4 from trespassing into the property or constructing any new road through the property. 3. According to the first defendant, the plaint schedule property is not identifiable and that the plaintiff had not obtained title or possession as alleged in the plaint. As per partition deed no.1378/1987, SRO, Kannur, the first defendant was allotted eight items of property as D schedule. Item no.7 and 8 in D schedule having an extent of 1 acre 13½ cent is situated in R.S.No.35/4 of Chelora amsom, desom. He assigned 34 cents out of item no.6 in R.S.No.35/3 to defendants 2 and 3 by virtue of deed no.1378/87, SRO, Kannur. The property was sold after leaving space for a pathway having a width of 4 meters on the eastern side of the property starting from the panchayat road on the south. The intention of the plaintiff is to establish some right over the property covered by items no. 7 and 8 of partition deed no.1378/87. He also contended that the pathway constructed by him about 16 years ago was made for the benefit of his assignees. **R.S.A.No.96 of 2024** 5 The attempt of the plaintiff is to annex the said portion of the property, a pathway together with her property, for which she has no right. 4. Defendants 2 and 3, the assignees of the first defendant also denied the claim of the plaintiff. According to them, there is a mud road situated on the eastern side of the property claimed by the plaintiff, which road is situated at a lower level than the property of the plaintiff and at a higher level from the property of the first defendant. Defendants 2 and 3 had purchased their property from the first defendant by virtue of sale deed no.3119/2002, SRO, Kadachira with a right of 10 feet motorable road to their property. After the purchase of their property, the defendants have been using the mud road lying on the eastern side of their property. The said pathway is also being used by the plaintiff to reach their property. The said mud road does not belong to the plaintiff and it is also not in her possession and therefore she is not entitled to the reliefs prayed for. **R.S.A.No.96 of 2024** 6 5. Necessary issues were framed by the trial court and the parties went to trial on the basis of the aforesaid pleadings. PW1 was examined and Exts.A1 to A4 and Exts.C1 to C4 were marked on the side of the plaintiff. The first defendant examined himself as DW1 and Exts.B1 and B2 were also marked. 6. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, dismissed the suit holding that the plaintiff had failed to prove that she was in exclusive possession of the plaint schedule property. Aggrieved, the plaintiff filed A.S.No.58/2019 and as per the impugned judgment, the appellate court reversed the finding of the trial court regarding possession and decreed the suit. Aggrieved, the first defendant has come up in appeal. 7. The trial court on the basis of Exts.C1 to C4 reports and plans, found the disputed area shown in green colour in Ext.C4 plan to be part of the plaint schedule property belonging to the plaintiff. However, the defendants were found to be in **R.S.A.No.96 of 2024** 7 possession of the disputed area. The trial court also found that no relief of recovery had been sought for and hence as the plaintiff in a suit for injunction simplicitor failed in proving exclusive possession and enjoyment of the property, declined to grant reliefs to the plaintiff. The first appellate court accepted Exts.C1 to C4 reports and plans of the Advocate Commissioner and concurred with the finding of the trial court that the disputed area belongs to the plaintiff. However, it interfered with the finding of the trial court regarding possession of the property. 7.1. According to the first appellate court, the specific case of the plaintiff all along was that the plaint schedule property was in her exclusive possession; that the defendants have no right to trespass into her property or create a motorable way through her property; and that taking advantage of her absence, the second and third defendants have started plying vehicles through her property without her consent. In such circumstances, the burden was on the defendants to prove that they had a valid right over the disputed **R.S.A.No.96 of 2024** 8 portion of the plaint schedule property. According to the first defendant, a 10 ft. wide pathway had been reserved to defendants 2 and 3 as per Exts.B1 and B2 sale deeds. Exts.B1 and B2 documents of the year 2002 and 2001 respectively refer to the existence of a 10 ft. wide pathway on the eastern boundary of the properties covered by the said documents. However, the appellate court found that the recitals in Exts.B1 and B2 would not bind the plaintiff as neither the plaintiff nor her predecessor-in-interest were parties in the said deed and therefore it could not be taken as an admission of the plaintiff or her predecessor-in-interest regarding the existence of a pathway. Therefore the first appellate court held that the mere fact that a 10 ft. wide pathway is referred to in Exts.B1 and B2 would not confer any right of way through the property of the plaintiff and that the defendants would have to establish an independent right over the disputed area of the plaint schedule property, that is, the portion marked in green shade in Ext.C4 plan which is admittedly part of the plaint schedule **R.S.A.No.96 of 2024** 9 property. Hence the appellate court concluded that as long as the defendants do not establish any right over the disputed portion, the principle that possession follows title, would have to be accepted. The first appellate court also held that the conclusion/finding of the trial court that the defendants are in possession of the disputed area, is erroneous. It was noticed that the defendants had never a case that they had acquired a right of easement by prescription over the disputed area or that they had perfected title over the property by adverse possession and limitation. They also did not have a case that the plaintiff had been dispossessed of the disputed area. On the other hand, the appellate court noticed that the second and the third defendants had specifically pleaded in their written statement that the disputed pathway or the disputed portion of the plaint schedule property was being used as a pathway by the plaintiffs also as ingress and egress to her property. In such circumstances, the conclusion/finding of the trial court that defendants 2 and 3 were in exclusive possession of the disputed **R.S.A.No.96 of 2024** 10 plaint schedule property was found to be incorrect and so reversed the same. 8. Heard the learned counsel for the appellant/first defendant. 9. It was quite strenuously and persuasively argued by the learned counsel for the first defendant that the first appellate court committed a grave error in reversing the findings of the trial court and granting a decree in favour of the plaintiff. According to him, the suit was one for injunction simplicitor and in such a case when there was clear evidence/materials on record to show that the plaintiff was not in possession of the disputed area, the relief of decree of injunction ought not to have been granted. It is also clear from the evidence on record that the defendants are in exclusive possession of the disputed area. The plaintiff never sought recovery over the disputed area and hence all the more reason for the first appellate court not to have granted a decree in favour of the plaintiff. The learned counsel also relied on the **R.S.A.No.96 of 2024** 11 dictum in **Suresh Lataruji Ramteke v. Sau. Sumanbai Panduran Petkar, AIR 2023 SC 4794 : 2023 KHC 6869** . 10. In **Suresh Lataruji Ramteke** ( _Supra_ ), the Apex Court explained the procedure to be followed by the second appellate court in dealing with appeals under Section 100 CPC. As held in the said case, hearing of a second appeal is a step by step process, each step being a consequence of the previous one. The different or various stages are - (i) framing of substantial questions at the stage of admission ; (ii) the appeal then being admitted for hearing; (iii) hearing thereon ; and (iv) a reasoned judgment. Therefore the requirement most fundamental under Section 100 CPC is the presence and framing of substantial questions of law. In other words, the existence of such a question is _sine qua non_ for exercise of jurisdiction under the Section. Only in the event of substantial questions of law arising in the appeal, this Court need to go to the next step of framing substantial questions of law and then giving an opportunity for either side to address arguments on **R.S.A.No.96 of 2024** 12 the same. 11. In the appeal memorandum it is alleged that the first appellate court erred in appreciating the principle of burden of proof and that the decree could not have been granted on the basis of the alleged weakness in the case of the defendants. It is also alleged that in the absence of plaintiff proving exclusive possession, the first appellate court committed a serious error in granting a decree of injunction in favour of the plaintiff. Exts.C1 to C4, the reports and plan of the Advocate Commissioner, are not disputed by the defendants. Ext.C3 report and Ext.C4 plan appears to have been filed by the Advocate Commissioner after identifying and measuring the property with the help of a Surveyor. The plaint schedule property has been identified as 'ABCDA plot' and the property of the first defendant as 'CBEFGC' plot. Ext.C3 report further says that an extent of four cents of property belonging to the plaintiff was seen converted as a road and the same has been demarcated and shown in green colour **R.S.A.No.96 of 2024** 13 in Ext.C4 plan . This disputed area in green colour is situated on the western boundary of the first defendant's property leading to the property of defendants 2 and 3 situated to the further north. As rightly held by the first appellate court as the defendants had not disputed or disproved the commission reports and plans, it can safely be concluded that the plaint schedule property and the disputed area have been correctly identified. The plaintiff never had a case that she had been dispossessed of any portion of the property. Her specific case in the plaint and in evidence is that the defendants had trespassed into a portion of her property on the eastern side and in her absence converted or carved out a new pathway for ingress and egress to their property. It is pertinent to note that the defendants also have no case that they had dispossessed the plaintiff of any portion of her property. On the other hand the specific case of the first defendant, admittedly the predecessor-in-interest of defendants 2 and 3, is that the disputed area is part of items 7 and 8 property which he obtained as per **R.S.A.No.96 of 2024** 14 partition no.1378/1987, SRO, Kannur. This document is not seen produced before the trial court. Moreover, this case of the first defendant that the disputed area is part of his property has been disproved by the reports and plans of the Advocate Commissioner which says that the disputed area is part of the plaint schedule property belonging to the plaintiff. As noticed earlier, defendants do not dispute the Commission reports and plans. Therefore it is clear that the plaintiff has got title over the disputed area also. 12. Now coming to the question of possession of the disputed area. As noticed earlier, plaintiff never had a case that she had been dispossessed of any portion of the plaint schedule property. Defendants have also no case that they had dispossessed the plaintiff of any portion of her property. The case of the first defendant that the disputed area is part of his part of his property obtained as per the partition deed referred to earlier, has been disproved by the reports and plans of the advocate commissioner. As noticed by the first appellate court, the case of the second and **R.S.A.No.96 of 2024** 15 the third defendants in their written statement is that the plaintiff is also using the disputed area as a pathway to reach their property. Therefore there is no case of dispossession of the plaintiff of the disputed area at all. They have also no case of exclusive possession of the disputed area. Therefore as rightly held by the first appellate court, merely because the defendants have trespassed and converted and are using a portion of the plaint schedule property as a pathway, the same would not confer any right on them unless they are able to establish a right over the same. The defendants have not established any such right over the disputed area. That being the position, the first appellate court was certainly right in holding that possession follows title and this is especially so when the defendants have never a case that they are in exclusive possession of the property or that they have dispossessed the plaintiff of the disputed portion of the property. There is no perversity or illegality in the findings of the first appellate court. No substantial questions of law arise in the appeal **R.S.A.No.96 of 2024** 16 and therefore compliance of the three steps as directed by the Apex Court in the decision cited on behalf of the first defendant/appellant does not arise. As no substantial questions of law arise, the appeal is liable to be dismissed _in limine_ and hence I do so. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** ami/