Joseph v. Saju, Antony, Government of Kerala and Tahsildar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH DAY OF OCTOBER 2012/16TH ASWINA 1934 RSA.No. 613 of 2012 () ---------------------AS.222/2009 of SUB COURT, PERUMBAVOOR OS.1/2001 of MUNSIFF COURT, PERUMBAVOOR APPELLANT(S)/APPELLANT/PLAINTIFF: -------------------------------------------- JOSEPH, AGED 56 YEARS, S/O.PAILY, UZHINJAPRAM HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE. BY ADVS.SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN SRI.R.V.RAHUL SRI.LIJIN THAMBAN RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------------------------------- 1. SAJU, AGED 38 YEARS S/O.ANTHONY, VELIYATHUPARAMBIL HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE-683 542. 2. ANTONY, AGED 62 YEARS - F/O. IST DEFENDANT SAJU, VELIYATHUPARAMBIL HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE-683 542. 3. GOVERNMENT OF KERALA REP.BY DISTRICT COLLECTOR, ERNAKULAM-682 030. 4. TAHSILDAR - KUNNATHUNADU TALUK, PERUMBAVOOR-683 542. ADV. SRI.P.THOMAS GEEVERGHESE FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------R.S.A. No.613 of 2012** **-------------------------------------Dated this the 8[th] day of October, 2012.** ## **JUDGMENT** Admit. 2. The following substantial questions of law are framed for a decision: i. Whether the lower appellate court did not commit gross error in totally ignoring and overlooking the challenge made against the correctness of the order of the trial court dismissing the interlocutory application? ii. Whether the courts below did not commit gross error in law in not deciding the petition under Order XXXIX, Rule 2A of the Code of Civil Procedure and the mandatory injunction petition, in spite of the admissions by DW1 and the clear evidence of PWs 1 to 3 and Exts.C2 and C2(a), commission report proving the violation and trespass? iii. Whether mere subsequent alienation of a portion of the plaint schedule property in his possession as on the date of the suit, by the plaintiff, would be fatal in a suit for injunction, atleast as regards the balance area left after the sale? iv. Whether in a case where the defendant, during the pendency of a suit for injunction, commits forcible trespass after the filing of the suit, the court does not have a duty to adjudicate the suit on the basis of the 2 RSA No.613/2012 status as on the date of the suit and order and enforce complete restoration of the status quo ante and grant prohibitory injunction. 3. The second appeal arises from the judgment and decree of learned Munsiff, Perumbavoor in O.S.No.1 of 2001. The suit for injunction was dismissed which the learned Sub Judge, Perumbavoor in A.S.No.222 of 2009 has confirmed. 4. According to the appellant, plaint A schedule item described as 41 cents in extent and comprised in R.S.No.227/7 belonged to and was in his possession as per Ext.A1, partition deed. The said property has well defined boundaries on all sides. Respondents have property – the plaint B schedule, three cents - towards north-east of the plaint A schedule. Plaint B schedule is about 2-2 ½ feet higher in level from the plaint A schedule. There is an old stone wall of 2 -2 ½ feet height to separate the plaint A and B schedules. Respondents 1 and 2 purchased the property on the east misrepresenting the extent and on the strength of that, attempted to trespass into the suit property. Hence the suit. 5. Respondents 1 and 2 disputed description of the plaint A and B schedules. They claimed that the plaint B schedule is 1.45 Ares (3.582 cents) in extent and that the said property is about one foot higher in level from the plaint A schedule. The boundary of the plaint B schedule slided due to the appellant drawing water through a channel. Hence the respondent wanted the boundary to be fixed. The appellant objected to the measurement. Thereon, the respondents made a request to the survey authorities. The survey authorities with the assistance of the Police fixed survey stones separating the plaint A 3 RSA No.613/2012 and B schedules. The respondents denied that there was any such stone wall between the plaint A and B schedules. 6. Respondents 3 and 4, the State and the Tahsildar claimed that the 1[st] respondent preferred a complaint to the 4[th] respondent on 23.10.2000 for measurement of the properties as per the provisions of the Survey and Boundaries Act. The 4[th] respondent issued notice to the parties (Exts.B3 to B6). The measurement was done on 26.12.2000. The appellant obstructed planting of survey stones. Hence with police assistance survey stones were planted on 04.01.2001 As per the purchase certificate in favour of the 1[st] respondent, he has 1.45 Ares in survey No.227/8 **.** 7. The trial court observed that during the pendency of the suit and without informing the court, the appellant sold a portion of his property abutting the plaint B schedule and hence he has no right to continue the suit. 8. It is contended by the learned counsel that the mere fact that the appellant had assigned a portion of the suit property is not sufficient to non-suit the appellant. The appellant, notwithstanding such assignment is entitled to proceed with the suit also because a portion of the suit property is still owned and possessed by the appellant. It is further contended by the learned counsel that the evidence on record would show that the stone wall which separated the plaint A and B schedules at the time the Advocate Commissioner inspected the suit property (on 01.01.2001) and as reported in Exts.C1 and C1(a) was interfered with by the respondents 1 and 2 as revealed by Exts.C2 and C2(a). The purchase certificate if any, issued to the respondents is not binding on the appellant. It is pointed out that it was after the institution of the suit that the 4[th] 4 RSA No.613/2012 respondent has fixed the survey stones in the suit property without knowledge of the court. That measurement cannot be accepted or approved. 9. The learned counsel for the respondents 1 and 2 contended that it is admitted that the appellant sold a portion of the plaint A schedule. The portion sold, abutted the plaint B schedule. According to the learned counsel, the assignees have constructed boundary wall separating the portion assigned to them with the plaint B schedule belonging to the respondents and hence there is no need for continuing this litigation. 10. So far as the finding of the courts below as to the entitlement of the appellant to proceed with the suit for the reason of his assigning a portion of the suit property is concerned, I am not inclined to uphold that finding. It is not disputed that the appellant sold 20 cents from out the plaint A schedule to his wife as per document No.2714 of 2003 pending the suit and the wife sold that portion to Varkey as per Ext.B1. The said Varkey is said to have assigned that portion to Biju as per Ext.B2. The appellant claimed to be in possession of the plaint A schedule on the date of suit. It is not disputed that atleast a portion of the plaint A schedule belongs and is in the possession of the appellant even now. Even if it is assumed that the entire plaint A schedule was sold by the appellant pending the suit, that does not mean that the appellant is not entitled to continue with the litigation. In **Rai Charan Mandal and another v. Biswanath Mandal and others (AIR 1915 Calcutta 103)** followed in **Lilabati Dasi v. Chitpore Golabari Co. (AIR 1938 Calcutta 481)** it is held that if the assignee does not come forward, the assignor can continue the proceeding (as the assignment was pending the proceeding). The above view gets support 5 RSA No.613/2012 from the decisions in **Jagdish Chandra v. Kameshwar Singh (AIR 1953 Patna 178), Karka Somulu & others v. Reddy Appalanaidu & others (AIR 1958 Andra Pradesh 507)** and **Kusuma Dei v. Malati (AIR 1969 Orissa 195)** . The question whether the assignee is not interested in continuing the litigation and if so, what is its consequence on the claim made in the suit are different matters. Therefore, the view taken by the courts below and the dismissal of the suit on the above ground cannot be sustained. 11. The learned counsel for appellant has invited my attention to Exts.C1, C1(a), C2 and C2(a) to contend that the stone wall which the Advocate Commissioner found at the time of inspection on 01.01.2001 (the date of suit) separating the plaint A and B schedules was found not in existence at the time of subsequent inspection as revealed from Exts.C2 and C2(a). It is also pointed out by the learned counsel that the Advocate Commissioner was able to find remnants of foundation of the stone wall which existed at the time of the first inspection, even at the time of the second inspection. Its position is shown in Ext.C2(a). The learned counsel submitted that in violation of the interim order of injunction granted by the trial court on 01.01.2001, the respondents 1 and 2 have trespassed into a portion of the suit property and demolished the existing boundary wall. It is also pointed out by the learned counsel that it was after institution of the suit the 4[th] respondent interfered in the matter, be it on an application preferred by the 1[st] respondent and fixed the survey stones. 12. I must notice that the suit is merely for prohibitory injunction. I stated that assignment of a portion of the property pending suit will not disentitle the appellant to proceed with the suit based on the situation that existed on the 6 RSA No.613/2012 date of the suit. The question whether in view of the assignment of atleast a portion of the suit property in favour of the wife of the appellant and that property ultimately reaching Biju as per Ext.B2, the appellant is entitled to seek any other relief with respect to the suit property or a portion of it, either by amendment of the plaint or otherwise is also a matter which the trial court has to decide. Merely based on the planting of survey stones by the Taluk Surveyor after institution of the suit based on a purchase certificate which the appellant is disputing and which the trial court has to consider, the claim of the appellant cannot be negatived. The question is required to be decided on the merit. 13. The contention raised by the learned counsel for respondents 1 and 2 that separating the portion from plaint A schedule assigned as per Ext.B2 and the plaint B schedule the assignees have constructed kayyalas and they are in peaceful possession and enjoyment of the portion assigned to them without any dispute is a matter which the respondents 1 and 2 could urge in the trial court. 14. Having heard the learned counsel on both sides I am inclined to think that the matter has to go back to the trial court for fresh decision. 15. The substantial questions of law are answered as above. Resultantly the second appeal succeeds and is allowed by way of remand as under: i. Judgment and decree in A.S.No.222 of 2009 of the Sub Court, Perumbavoor and of the Munsiff's Court, Perumbavoor in O.S.No.1 of 2001 are set aside. ii. O.S.No.1 of 2001 is remitted to the trial court for fresh 7 RSA No.613/2012 decision after giving both sides opportunity to amend the pleadings, impleading necessary/proper parties if any, and if so advised and after giving the parties opportunity to adduce further evidence. iii. Parties shall appear in the trial court on 01.11.2012. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**