Karunakaran and Mohanan v. Kumaran, Leela, Mohanan, and Sathyan

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: ## THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN ## WEDNESDAY, THE 16TH DAY OF JANUARY 2013/26TH POUSHA 1934 ## RSA.No. 461 of 2005 ( ) ----------------------- AGAINST THE JUDGMENT IN AS.17/2002 of SUB COURT,THODUPUZHA AGAINST THE JUDGMENT IN OS.46/1998 of MUNSIFF'S COURT ,THODUPUZHA ## APPELLANT(S)/APPELLANTS: 1. KARUNAKARAN AGED 53,KANDATHINKARA HOUSE,CHILAVU KARIMANNOOR VILLAGE. 2. MOHANAN, SON OF KUNJAN, AGED 42, KANDATHINKARA HOUSE,CHILAVU,KARIMANNOOR VILLAGE. BY ADVS.SRI.K.C.CHARLES SRI.A.BALAGOPALAN RESPONDENT(S): ------------- ## 1. KUMARAN AGED ABOUT 68,MADATHIL HOUSE,VELLANTHANAM KARA UDUMBANNOOR VILLAGE. 2. LEELA, WIFE OF CHANDRAN, AGED ABOUT 40,MADATHIL HOUSE,VELLANTHANAM KARA UDUMBANNOOR VILLAGE. 3. MOHANAN, S/O. AYYAPPAN, AGED ABOUT 42, CHIRACKAL KUZHUPPIL HOUSE,VELLANITHANAM KARA UDUMBANNOOR VILLAGE. 4. SATHYAN, SON OF KUMARAN, MADATHIL HOUSE,VELLANTHANAM KARA UDUMBANNOOR VILLAGE. ADVS. SRI.T.J.MICHAEL SRI.P.NOOR SEMIR FOR R1,2 & 4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## N.K.BALAKRISHNAN, J. ................................................................. R.S.A. No. 461 of 2005 .................................................................... Dated: 16th day of January, 2013 ## JUDGMENT The plaintiffs are the appellants. Their suit for fixation of boundary and injunction was dismissed by the trial court and also by the appellate court. The plaintiffs, who are the brothers claimed right over an extent of 43¾ cents each (total 87½ cents) in Survey No.49/IB/2 of Karimannoor Village which they obtained as per two sale deeds; Sale Deed Nos.392/1987 and 393/1987. Defendants 1 and 2 have properties lying to the west of the plaintiffs' properties. There is a thondu (a lane situated in between two mud walls on either side which is usually formed by taking mud for the construction of mud walls on the western side) on the western side. During rainy season, rain water used to flow through that thondu. The Vallamthanam-Chilavu road is situated on the northern side of the plaint schedule properties. It is alleged that 3[rd] R.S.A. No. 461 of 2005 -:2:- defendant is having a small strip of land on the eastern side of the plaint schedule properties. That small strip of land is stated to be lying on the eastern side in north-south direction. It was stated that there was a water channel still lying to the west of the thondu mentioned earlier. 2. The defendants contended that the plaintiffs' property is having well defined natural boundaries on the eastern and western sides. The allegation of trespass alleged was denied. The appellants have no right beyond the thondu on the western side and beyond the physical boundary situated on the eastern side and so the plaintiffs cannot have the boundary re-fixed taking the land situated beyond the boundaries mentioned above, they further contended. 3. First plaintiff was examined as PW1 and Advocate Commissioner was examined as PW2. Exts.A1 to A5 were marked on the side of the plaintiffs. First defendant was examined as DW1 and Ext.B1 was marked. Ext.B1 is the certified copy of the common judgment in O.S.No.269/1995 R.S.A. No. 461 of 2005 -:3:- and O.S.No.306/1995 of the Munsiff's Court, Thodupuzha. 4. It was stated that when the first plaintiff and his brother tried to encroach the property, a suit was filed by the 3[rd] defendant as O.S.No.269/1995 and that suit was decreed. O.S.No.306/1995 filed by the brother of the plaintiffs for declaration of right of easement over the narrow strip of land lying to the east of the plaint schedule property was dismissed. Any way, since the present suit is for fixation of boundary and for consequential injunction, the dismissal of the earlier suit for injunction may not be of much consequence. The court below found that plots 1 and 2 shown in Ext.C1(a) are the plots held by the plaintiffs and that along the western boundary of those two plots, a 'thondu' is situated and that 'thondu' forms the boundary. It was stated that there is a mud wall on the eastern and southern boundaries and that on the northern side, a road is situated. In Ext.C1 report, the Commissioner reported that the mud wall which is the boundary separating the defendants' properties was shown by the parties including R.S.A. No. 461 of 2005 -:4:- the plaintiffs. 5. Learned counsel for the appellants has taken strong exception to the report and plan submitted by the Commissioner who was examined as PW2. The properties were, in fact, surveyed with the help of the Taluk Surveyor, who has actually signed Ext.C1(a) plan. In Ext.C1 report, it was stated by the Commissioner that though as per the documents, the plaintiffs had obtained right over 43¾ cents each, in fact the actual extent available within the four boundaries was only 35.81 cents and 36.36 cents respectively. If the plaintiffs have title to the entire property of 87½ cents, the remaining extent should be situated beyond the boundary pointed out by DW2 and that the plaintiffs are presently holding possession of only 72.17 cents, the defendants contend. It was reported by the Commissioner that as per the documents produced by the 3[rd] defendant, the small strip of land lying to the east of the plaintiffs' property is situated in R.S.No.105/1/2. But when the properties were surveyed, the said small strip of land R.S.A. No. 461 of 2005 -:5:- which is used as a way was found to be situated in R.S.Nos.105/1/2 and 105/2/2. It was stated that the total extent of the narrow strip of land now held by the 3[rd] defendant is 2.12 cents as against 1¼ cents obtained as per the two documents. Thus, according to the plaintiffs, the defendant trespassed into that portion of land and so, eastern boundary has to be re-fixed as per the title deeds of the plaintiffs. 6. Learned counsel for the appellants would submit that the courts below dismissed the suit on the ground of non-joinder of a party who is holding a small bit of land on the north-eastern side. It is pointed out by the learned counsel that no specific issue regarding non-joinder was raised by the defendants and as such, the courts below were not justified in non-suiting the plaintiffs on that ground. But the learned counsel for the respondents would submit that the suit was dismissed not on the ground of non-joinder of necessary party, but the factum of nonimpleadment of the owner of the small bit of land situated R.S.A. No. 461 of 2005 -:6:- on the north-eastern side of the plaint schedule property was also projected by the courts below to hold that the plaintiffs are not entitled to the relief sought for. Learned counsel for the appellants would submit that as the Commissioner's report and plan are unacceptable a request was made before the lower appellate court for an order of remand for enabling the appellants to adduce further evidence. 7. The suit was for fixation of boundary and for a consequential injunction. The evidence on record would show that there is a thondu on the western side which according to the defendants separates their properties on the west which is lying lower in level. Defendants contend that the thondu was the natural physical boundary. 8. It is argued by the learned counsel for the appellants that as the suit is filed for fixation of the boundary based on the title deeds referred to earlier, the courts below were not justified in declining the relief sought for, without specifically pointing out the exact R.S.A. No. 461 of 2005 -:7:- boundary which has to be fixed relying upon the title deeds relied upon by them. It is also argued that there is no case for the defendants that the plaintiffs have no title to the property covered by Exts. A1 and A2, the title deeds. The suit had to be filed because there was dispute with regard to the boundary of the properties covered by Exts.A1 and A2 which are lying contiguously. In this connection, the learned counsel has relied upon the decision of the Division Bench of this Court in **Narayanan Nair v. Achuthan Nair - 1973 KLT 299** . In that suit, the parties did not agree about the location of the particular boundary on the spot on the basis of the description in Ext.A3, the title deed referred to therein and so, the plaintiffs had to move the Court as the owner of his property to have the boundary settled. Though it was contended by the defendants therein that the suit for fixation of boundary was not maintainable, that contention was negatived. It was held that the right to institute a suit to seek remedy for infringement of plaintiffs right or for protection of his right could be exercised unless -:8:- R.S.A. No. 461 of 2005 some provision of law expressly or impliedly bars cognizance of such suit. The Division Bench in the decision cited supra held thus : _"Tracts of lands which are either unsurveyed or which are forest or barren area owned by neighbouring proprietors are now and then seen to be without any definite boundary marks. In regard to such land there may be cases where the owners do not exercise acts of possession and possession very often is deemed to follow title. In regard to such land disputes may arise as to where exactly should the boundaries be drawn. It would not be a case where either party denies the title of the other, but there may be bonafide dispute between the parties as to where they should draw the line to demarcate their respective holdings. It is only when one of the parties or both of them think of exercising acts of possession in the land that this dispute will come into focus and then, if they cannot settle the matter between themselves the consequence would be that each one would try to take possession of the property which is claimed as that of the other. It is only natural that then they think of resorting to the civil court to settle the dispute as to the boundary. If a person who apprehends trespass to his property has a right to approach a civil court to protect his possession, we see no rational difference between such a case and the one where a person has reasonable apprehension that in the absence of a definite boundary demarcated on the spot his title and possession may be in jeopardy. If a person could come to a court for declaration of his title to property and removal of the cloud on his title even though there is no actual encroachment or infringement upon that title, but only because he has sufficient reason to apprehend an imminent infringement, we do not see any reason why a suit for determining the dispute as to the boundaries, very often in apprehension of a trespass in the event of that dispute not being settled by Court, should not lie in Court"._ R.S.A. No. 461 of 2005 -:9:- ## 9. In the brief note added by his Lordship Justice G. Viswanatha Iyer, J., it was observed:- _"As the owner of one piece of land is under a legal duty not to interfere with the possession and enjoyment of the owner of a neighbouring land as part of that duty, or for its performance rather, he must know the limits of the neighbour's land. When the latter seeks his cooperation to fix the dividing line separating his property he must respondent to it. If he refuses to cooperate or claims to have the dividing line drawn in a way different from that put forward by the neighbour there is an uncertainty or a threat to or a cloud cast to the right of possession of the land of the neighbour and the latter can approach the Court seeking redress. It may not be possible for him to seek recovery or seek injunction as a main relief in that suit that relief will depend on the fixation of the dividing line. The main relief can be one for fixation of boundary and the other reliefs, if necessary, will be " consequential or incidental ._ _(emphasis supplied)_ Relying upon the same, the learned counsel for the appellants submits that it may not be possible for the plaintiffs to seek recovery of the small strips of land which may be now in the possession of the defendants unless the boundaries are fixed for which the main relief of fixation of boundary has to be granted by the Court since that relief cannot be declined stating that there is a thondu R.S.A. No. 461 of 2005 -:10:- or water channel along the boundary of the property held by the plaintiffs. 10. The decision of the Division Bench of this Court and in particular the brief note were quoted with approval by the Apex Court when the very same matter was taken by the defeated party before the Hon'ble Supreme Court vide the decision in **Achuthan Nair v. Narayanan Nair - 1987 (2) KLT 777 (SC** ) . 11. In the light of the decision of the Supreme Court which has confirmed the decision in **Narayanan Nair v. Achuthan Nair - 1973 KLT 299** , it is vehemently argued by the learned counsel for the appellants that the courts below were not justified in dismissing the suit holding that the plaintiff's property is up to the thondu on the western side and the mud wall on the eastern side. Since the suit was for fixation of boundary of the property, claimed by them based on Exts.A1 and A2 and since the suit is filed to protect the property held by them plaintiffs are entitled to get the boundaries fixed. The width of the thondu and R.S.A. No. 461 of 2005 -:11:- mud kayyalas (mud walls) may vary due to rain or flow of rain water. Often, when the thondu or the mud kayyala are to be repaired and also when there would be slipping away of mud from the mud walls, and when one party wants to put up or restore the mud walls unless the separating survey boundary line is fixed then it may lead to further disputes. It is in order to avoid such disputes survey boundary lines are sought to be fixed. As stated earlier, those survey boundary lines are to be denoted separately with alphabetic letters. All these aspects are conspicuously absent, in the plan submitted by the Commissioner. The learned counsel for the appellants would submit that the contention raised by the respondents that no serious objection was raised to the report and plan submitted by the Commissioner is unsustainable, since serious objection was raised as can be seen from the objections filed by the appellants. In fact, it is seen that there was a request to set aside the report and plan. But that was not considered by the courts below. R.S.A. No. 461 of 2005 -:12:- 12. In Ext.C1, the Advocate Commissioner has stated that the properties covered by Exts.A1 and A2 are lying contiguously and that on the four sides, the boundaries are seen. But, according to the appellants, that observation is not correct. It is contended that there is a 'chal' lying along the western side in north-south direction. Even if there is a mud wall, the exact boundary line has to be fixed and relief has to be granted by the court specifically stating that the boundary of the property lies along the particular line shown by the Advocate Commissioner in the plan produced by him. Though the plan drawn by the Taluk Surveyor is seen produced, the survey lines and points are not denoted by using letters. The red lines seen drawn in Ext.C1(a) are not survey boundary line, it is stated. Only the black line is stated to be the survey boundary line. In order to protect the property from further encroachment and to see that the boundaries of the properties are kept intact, the suit had to be filed by the plaintiffs. The suit was not for mere injunction but for fixation of the boundary. Therefore, the R.S.A. No. 461 of 2005 -:13:- Advocate Commissioner was expected to denote the survey boundary line separating the property of the plaintiffs from that of the defendants by noting the different points by using different letters. Showing the measurements from such points to the nearest survey points. Therefore, a further report and plan may be necessary so as to fix the boundaries of the plaint schedule property. Whether any portion of the property covered by Exts.A1 and A2 is held by any other party and what is the consequential relief to be granted is a matter to be considered only when the boundaries are fixed as noted above. Since that has not been done and since the courts below proceeded to dispose of the suit as if it is a simple suit for injunction without fixing the boundary of the plaint schedule property, the judgment and decree confirmed by the appellate court cannot be sustained. In the result, this appeal is allowed. The judgment and decree passed by the courts below are set aside and the suit is remanded to the trial Court for fresh R.S.A. No. 461 of 2005 -:14:- disposal in accordance with law and in the light of the aforementioned observations. Parties are directed to appear before the Munsiff's Court, **Thodupuzha on 15-2-2013.** Both sides are given opportunity to adduce further evidence in the matter. ## Dated this the 16th day of January, 2013. Sd/- **N.K.BALAKRISHNAN, JUDGE** ani/ /true copy/ P.S. to Judge