Komalamma v. Saradamma and Sivakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939** **SA.No. 758 of 2001 ( ) -----------------------** **AGAINST THE DECREE AND JUDGMENT DATED 22.8.2001 IN AS 56/1993 of SUB COURT, CHERTHALA** **AGAINST THE DECREE AND JUDGMENT DATED 18-03-1993 IN OS 11/1990 of PRINCIPAL MUNSIFF COURT, CHERTHALA** **APPELLANT (APPELLANT IN THE APPELLATE COURT AND DEFENDANT IN THE TRIAL COURT:** **--------------------------------------------------------------** **KOMALAMMA, D/O. NANIKUTTY AMMA, LEKSHMI NIVASIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE.** **BY ADV. SRI.V.L.SHENOY** **RESPONDENTS (RESPONDENTS IN THE APPELLATE COURT AND PLAINTIFFS IN THE TRIAL COURT:** **---------------------------------------------------------------** **1. SARADAMMA, D/O. KAMALAKSHI AMMA, RADHAKRISHNA SADANAM, CHARAMANGALAM MURI, MARARIKULAM NORTH VILLAGE.** **2. SIVAKUMAR, S/O. RAJAPPAN NAIR, RADHAKRISHNA SADANAM, CHARAMANGALAM MURI, KANJIKUZHY VILLAGE.** **R1&2 BY ADV. SRI.M.P.KRISHNAN NAIR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.6.2017, THE COURT ON 30-06-2017 DELIVERED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ....................................... S.A.No.758 of 2001 ........................................ Dated this the 30[th] day of June, 2017. ## **JUDGMENT** The defendant in OS.No.11/1990 on the file of Principal Munsiff Court, Cherthala is the appellant herein. The suit was one filed by the plaintiffs for declaration and recovery possession of plaint schedule property from the possession of the defendant. The case of the plaintiffs in the plaint was that the plaint schedule property along with other portion belonged to the first plaintiff and there was a suit filed as OS.No.131/1977 on the file of the Sub Court, Alappuzha by the first plaintiff against the defendant and others and in that suit, the matter was settled between the parties and as per Ext.A1 compromise petition, 39.480 cents of land comprised in Sy.No.266/4 of Mararikulam Vadakku village was given to the 1[st] defendant herein and on that basis Ext.A2 decree was passed and thereafter the first plaintiff has been in possession and enjoyment of the remaining property and the defendant is in possession of the property given to her as per Ext.A2 decree. There was a suit between the defendant and the church in respect of 6 cents of land as OS.No.875/1965 and OS.No.131/1977 was compromised with the stipulation that 6 cents of land on the northern side of the property given to the defendant will be subject to the result of OS.No.875/1965 and 2 S.A.No.758 of 2001 later that was settled between them and the defendant had given 6 cents of land on the northern side to the church for the purpose of forming a road and she is in possession of the balance 33.480 cents of land. Except that, she has no right over the remaining portion which is in the possession of the first plaintiff. The 1[st] plaintiff is having property on the east, south and west of the property given to the defendant and except the first plaintiff, none had any right over the same. During the end of October, 1980 the defendant attempted to construct a compound wall trespassing into the property of the 1[st] plaintiff and 1[st] plaintiff's husband Rajappan Nair obstructed the same and on the basis of the complaint given by the defendant, a case was registered by the police and that was submitted to the Judicial First Class Magistrate Court, Cherthala where it was taken as C.C.No.5/1981 and that was ended against the defendant as per judgment dated 30.9.1983. While so, the defendant had trespassed into the portion described as plaint schedule and constructed a compound wall enclosing certain portion of the 1[st] plaintiff's property and planted certain coconut plants. The 1[st] plaintiff had executed settlement deed No.1238/1984 in favour of her son, the 2[nd] plaintiff, in respect of a portion of her property and so he has been impleaded as the 2[nd] plaintiff. Since the defendant had encroached into the property of the plaintiffs and constructed compound wall enclosing an extent of 8 cents described in the plaint as plaint schedule it has become 3 S.A.No.758 of 2001 necessary to file a suit for declaration and recovery of possession of the trespassed area. Hence the suit. 2. The defendant entered appearance and filed written statement contending as follows: The suit was not maintainable and it has been filed with malafide intention to harass the defendant without any bonafides suppressing material facts. It was admitted that there was a litigation between the 1[st] plaintiff and the defendant and others as OS.No.131/1977 of Sub Court, Alappuzha and the same was settled on the basis of a compromise entered into between the parties and the defendant has been in possession of the property given to her as per the compromise decree. The 2[nd] plaintiff along with his brother Radhakrishnan Nair filed OS.No.516/1980 against her and the same has been later dismissed. The defendant is the wife of Rajappan Nair, who is the husband of the 1[st] plaintiff as well. The marriage between the defendant and Rajappan Nair was solemnized on 14.9.1959 at Guruvayoor temple as per custom and a daughter by name Rajalekshmi was born to them in that wedlock. The 1[st] plaintiff is the first wife of said Rajappan Nair and the 2[nd] plaintiff was the son born to them in that wedlock. The said Rajappan Nair was not in good terms with the defendant and he has been living with the 1[st] plaintiff and the present suit has been filed with his blessings and co-operation. The plaintiffs were aware of the outcome of OS.Nos.131/1977 and 516/1980 4 S.A.No.758 of 2001 and they are binding on them. She had admitted the tittle of the 1[st] plaintiff in respect of the remaining portion after allotment of the property covered by the decree in OS.No.131/1977. She admitted regarding the case OS.No.875/1965 between the church and the defendant and that was in respect of the northern portion of the property given to her and the present suit is in respect of the southern portion of the property given to her. On the basis of the compromise decree in OS.No.875/1965, the trees on the northern portion were cut and removed and it was surrendered to them. The defendant had constructed a compound wall on the southern side of her property along with the boundary of the property. There was a compound wall in east west direction of the southern boundary and she is having some property outside the compound wall on the eastern side and the plaintiffs have no right over that portion of the property. They are having right on the south of the compound wall and they have no right on any land on the north of the compound wall. The allegation that the compound wall was constructed during the end of 1980 is not correct. It is also not correct that it was obstructed by Rajappan Nair. The suit OS.No.516/1980 was disposed on 31.10.1980 and the plaintiffs had filed the present suit in 1990 in respect of an incident occurred during 1980. C.C.No.5/1981 was disposed of due to want of evidence and that will not affect the right of the parties in the property. The plaint schedule property belongs to her and there is 5 S.A.No.758 of 2001 no necessity for her to trespass into the same as well. The plaintiffs have no right over the property given to her as per the compromise decree in OS.131/1997 and the settlement deed No.1238/1984 mentioned in the plaint has no connection with the property in the possession of the defendant and she was not aware of the execution of the document as well. The plaintiffs have acquiesced with the construction of the compound wall and as such, the plaintiffs are not entitled to get declaration and recovery of possession as claimed. There was no cause of action for the plaintiffs to file the suit. The suit was frivolous and vexatious one and she prayed for dismissal of the suit with compensatory costs of Rs.1,000/- under Section 35A of the Code of Civil Procedure. 3. On the basis of the pleadings, following issues were framed by the trial court for consideration: i. Whether the respondents/plaintiffs are entitled to get a decree for declaration as well as eviction as prayed for? ii. Whether the respondents/plaintiffs are entitled to realize the damages by way of use and occupation from the appellant/defendant? 4. PWs 1 to 3 were examined and Exts.A1, A2, C1 and C1 (a) were marked on the side of the plaintiffs to prove their case. No oral evidence was adduced on the side of the defendant and Exts.B1 and B2 were marked on her side. After considering the evidence on record, the trial court found that an extent of 2 cents 6 S.A.No.758 of 2001 shown in green shaded portion in Ext.C1(a) plan is the encroached portion by the defendant into the plaint schedule property and plaintiffs are entitled to get declaration and recovery of possession of that portion of the property from the defendant and decreed the suit accordingly. Dissatisfied with the same, the appellant herein filed AS.No.56/1993 before Sub Court, Cehrthala and the Sub Judge by the impugned judgment confirmed the decree and judgment passed by the court below and dismissed the appeal. Dissatisfied by the same, the present second appeal has been preferred by the appellant. 5. While admitting the appeal, following substantial questions of law have been framed by this court. i. Whether the trial court has not failed to frame proper issues and advert to relevant documents before decreeing the suit? ii Whether the lower appellate court has not gone wrong in confirming the same? 6. Heard the counsel appearing on both sides. 7. The counsel for the appellant argued that even the plaintiffs had filed objection to the Commissioner's report and gave evidence that the Commissioner's report is not proper and under such circumstance, it cannot be said that the property has been properly identified. Further the Commissioner had only measured the defendant's property alone and no attempt was made to identify the plaintiffs' property which has been described in the S.A.No.758 of 2001 7 plaint. Further no attempt was made on the part of the Commissioner to locate the pond in the property and without locating the same, it cannot be said that the property has been properly identified. So, according to the learned counsel, the courts below were not justified in decreeing the suit relying on Ext.C1(a) plan and the matter requires interference. The counsel also argued that the 2[nd] respondent along with his brother filed another suit and that was later dismissed for default and as such, they are barred by filing a second suit. Further, the alleged cause of action had arisen in the year 1980 and the suit was filed in the year 1990 and there was acquiescence on the part of the respondents and as such, the suit is barred by limitation. He had relied on the decision reported in _**Jose Lalichan and another v. Augustin**_ (2011 (4) KHC 847) in support of his case. 8. On the other hand, the counsel for the respondents argued that there is no dispute regarding the title to the property and admittedly the property on the south, east and west of the property given to the defendant belongs to the 1[st ] plaintiff and the defendant has no right over the same. She is also not claiming any right over the property in the possession of the plaintiffs as well. Since suit OS.516/1980 was dismissed for default, there is no bar for filing a fresh suit. Further the Commissioner had identified the property covered by Ext.A1 compromise and found that certain portions in green shaded is included within the compound wall constructed by 8 S.A.No.758 of 2001 the defendant which is outside the extent covered by Ext.A1 property. Since the suit was filed within 12 years, it is not barred by limitation and as such the courts below were perfectly justified in decreeing the suit and there is no substantial question of law arises for consideration. 9. It is an admitted fact that the plaint schedule property along with other properties originally belonged to the 1[st] plaintiff. PW1 is the husband of the 1[st] plaintiff and 2[nd] plaintiff was born to him in that wedlock. The defendant is also claiming to be the second wife of PW1 and a daughter by name Rajalekshmi was born to them. There was an earlier suit between the 1[st] plaintiff, the defendant, Rajappan Nair (PW1) and another in respect of the properties belonging to the 1[st] plaintiff as OS.No.131/1977 of Sub Court, Alappuzha and that suit was compromised as per Ext.A1 compromise and recording Ext.A1 compromise, Ext.A2 decree was passed. These aspects were not in dispute. Even the defendant admits that she is only entitled to get the property covered by Ext.A1 compromise followed by Ext.A2 decree and there is no dispute regarding the fact that the 1[st] plaintiff is having property on the south, east and west of the property given to the defendant as per Ext.A1 compromise. The defendant is not claiming any right over the same as well. It is also in a way admitted by both the parities that there was some litigation between the church and the defendant in respect of a portion of the property on the north given 9 S.A.No.758 of 2001 to the defendant as per Ext.A1 and there was a stipulation in Ext.A1 that, that dispute had to be resolved between the defendant and the church authorities. It is also in a way admitted that OS.No.875/1965 filed by Alappuzha Archbishop was settled and 6 cents of property was given to the church and the remaining property is in the possession of the defendant. According to the plaintiffs, as per Ext.A1, 39.480 cents of land was given with specific measurements and after deducting 6 cents given to the church out of this property, the defendant is entitled to only 33.480 cents of land. This fact is admitted by the defendant as well. Then the question is as to whether while constructing the compound wall on the southern side, is there any encroachment made by the defendant into the property of the plaintiffs and if so, what is the extent so encroached and if so, the plaintiffs are entitled to get recovery of the same. 10. The description of the property given to the defendant as per Ext.A1 compromise reads as follows: _ആലപ�ഴ റ��ഡ�ന� റ�ക� ക�ഷ� റ�ഡ��ർ വക സ�ലത�ന� വടക� പള�വക_ _സ�ലത�ന� ക�ഴക പ�രയ�ടത�ന� ന�ലത�ന� റ"ക� സർറ# 266/1-1, 266/1-2, 266/4-1, 266/4-3, 266/5-2, 266/5-3, 266/5-4, 266/5-5 ഈ നമരകള�_ _ൽ ഉൾറപട പണ�രവക പ�ട� ഒന�യ� ക�ടപ� പ�രയ�ടവ അ"�ൽറപടത വ�റട�ഴ�പ�ച� ന�ലവ ഉപകര�റവള�� പ�രയ�ടങള���യ� ഒന�യ� ക�ടപ� ന�ല�_ _പ�രയ�ടങള�ൽ സർറ# 266/4 ൽ ഉൾറപട വടറക എല�കയ�യ പള�വക_ 10 S.A.No.758 of 2001 _സ�ലവ �യ� ക�ഴക പട�ഞ���യ� റകട�യ�ട�ള �"ല�റ> വടക പട�ഞ�റ�_ _�? ലയ�ൽ ന�ന� ക�ഴറക�ട� 175 ല��ഗ�സ ട� 175 ല��ഗ�സ എതന സ��നത ന�ന� റ"റക�ട� 210- o അവ�റട ന�ന� പട�ഞ�ട� 45-o അവ�റട ന�ന� റ"റക�ട� 46-o അവ�റട ന�ന� പട�ഞ�റ��ട� 60- o അവ�റട ന�ന� റ"റക�ട� 44- o അവ�റട ന�ന� പട�ഞ�ട� 69- o അവ�റട ന�ന� വടറക�ട� 35- o അവ�റട ന�ന� വടക� ക�ഴറക�ട� 40- o അവ�റട ന�ന� ആദ�� അളവ� തടങ�യ വടറക�ട� 225- o ല��ഗ�സ� അളവ�കൾ ഉളത� 39.480 റസ>� വ�സJKർണ� ഉളത��യ വസMവ ട� വസMവ�ൽ ക�ഴക ദർശന� ഓട� റ�ഞ പ�രയ�� ട� എല�കകകത� സ��"� റPയ�ന റ"ക പട�ഞ�റ� അ"�ര�റന�ട� റPർനള കളവ കള� ഒഴ�ച�ള ഭ�ഗത� വടക� ക�ഴക� റ"ക� പട�ഞ�����യ� സ��"� റPയ�ന �"�ല�കള�� �"�ല�നകതള �റ� P�യങള�� ട� കളത�റ> ��ട�യ�ൽ റ"ക� പട�ഞ�����യ� സ��"� റPയ�ന �കന o റ"ങ� വ�കങള�� ക�ഴറക�ട�ള gate- �റ� P�യങള��._ The property is comprised in Sy.No.266/4 of Mararikulam Vadakku village. ## 11. The plaint schedule property as described in the plaint is as follows: _Sy.266/1-1, 266/1-2, 266/4-1, 266/4-3, 266/5-2, 266/5-3, 266/5-4, 266/5-5 ഈ നമരകള�ൽ ഉൾറപട പണ�രവക പ�ട� ഒന�യ� ക�ടപ� പ�രയ�ടവ അ"�ൽറപട റവട�റയട�ത ന�ലവ ഉപകര�റവള�� പ�രയ�ടങള���യ� ഒന�യ� ക�ടപ� ന�ല� പ�രയ�ടങള�ൽ Sy.266/1-4 ൽ ഉൾറപട വടറക എല�കയ�യ� കര"�യ�രന പള�വക സ�ല��യ� ക�ഴക പട�ഞ���യ� റകട�യ�രന �"�ല�റ> വടക പട�ഞ�റ� �? ലയ�ൽ ന�ന� ക�ഴറക�ട� 175 ല��ഗ�സ ന�ന� റ"റക�ട� 210- o അവ�റട ന�ന� പട�ഞ�ട� 45-o അവ�റട ന�ന� റ"റക�ട� 46-o അവ�റട ന�ന� പട�ഞ�റ��ട� 60- o അവ�റട ന�ന� റ"റക�ട� 44- o അവ�റട ന�ന� പട�ഞ�ട� 69o അവ�റട ന�ന� വടറക�ട� 35- o അവ�റട ന�ന� വടക� ക�ഴറക�ട� 40- o അവ�റട_ 11 S.A.No.758 of 2001 _ന�ന� ആദ�� അളവ� തടങ�യ വടറക�ട� 225- o ല��ഗ�സ� അളവ�കൾ ഉളത� 39.480 റസ>� വ�സJ Kർണ� ഉളത��യ സ�ലത�ൽ പ"� പള�ക� വ�ട�റക�ട�ത വടകറ� 6 റസ>� നKക� 33.480 സ�ലവ അ"�ല�ള P�യങള�� �"�ല�കള�� ഉൾ റപറടയ�ള സ�ലത�റ> റ"കറ� റക�ണ � ക�ഴക �, വടക�, റ"ക� പട�ഞ�����യ�ള ഉറ]ശ� 8 റസ>� സ�ലവ ട� സ�ലത�ൽ പ"� അനധ�ക�"��യ� കയറ�വച �"�ല�കള�� ത"കള��.._ 12. So it is clear from the descriptions that the case of the plaintiffs is in respect of an approximate extent of 8 cents on the south, west and east of the property covered by Ext.A1 compromise. So there is no dispute regarding the identity of the property or right of the parties to the property claimed. 13. In order to ascertain as to whether there was any encroachment into the property of the plaintiffs by the defendant while constructing the compound wall, PW2 Advocate Commissioner was appointed and he with the help of PW3 surveyor inspected the property and submitted Exts.C1 report and C1(a) plan. The Commissioner had identified the plaint schedule property, the property said to be encroached in respect of which recovery of possession is sought, in green shaded portion in Ext.C1(a) plan. The Commissioner had located plot ABCDEFGHIJ as the property given to the defendant as per Ext.A1 compromise. The compound wall constructed by the defendant was shown in red line connecting the compound wall on the east and west of the property given to the defendant. The property given to the road to the church by the defendant was shown in orange shaded area in Ext.C1(a) plan. 12 S.A.No.758 of 2001 The defendant had not filed any objection to the Commissioner's report and plan. She did not go to the witness box to give any evidence regarding the same as well. Though location of the pond was not mentioned in the plan, its location, description etc were mentioned in Ext.C1 report by the Commissioner. Though the plaintiffs claimed the trespassed area as 8 cents, on the basis of the measurement made by the Commissioner with the help of the Surveyor, it will come only two cents which is shown in green shaded portion in Ext.C1(a) plan by the Surveyor. 14. It is true that the plaintiffs had filed objection to the Commissioner's report and plan stating that the measurement made is not correct. Her witness PW1 was examined on her behalf and he had deposed in tune with the objection to common report as well. But PW2 Commissioner and PW3 surveyor had categorically stated that they have properly measured the property on the basis of the measurement given in Ext.A1 and even if 6 cents is located in Ext.C1(a) plan as the area covered by the road given to the church, the position of the property and the compound wall noted will not be changed. It is on that basis that the courts below have accepted Ext.C1(a) plan and came to the conclusion that the defendant had constructed the compound wall encroaching into the property of the plaintiffs which is marked by the Commissioner in Ext.C1(a) plan as green shaded area having an extent of 2 cents and granted relief in respect of the same. It was also seen from 13 S.A.No.758 of 2001 the Commissioner's report and plan that the area shown in blue shade situated on the south eastern portion of the defendant's property though falling outside the compound wall is within the measurements provided in Ext.A1 compromise and in the possession of the defendant. Since the plaintiffs did not make any claim in respect of the same and the defendant also did not make any claim separately, the courts below did not grant any relief in respect of that portion. 15. It is settled law that the court has got power to grant lesser relief to the plaintiffs than the relief claimed in the plaint even without seeking any amendment of the same. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the defendant had encroached into 2 cents of land belonging to the plaintiffs while constructing the compound wall over and above the property given to her which is shown by the Commissioner in Ext.C1(a) plan as green shaded area and rightly granted relief to the plaintiffs in respect of the same. 16. Since the defendant is not disputing the title of the plaintiffs over and above the area covered by Ext.A1 situated on the east, west and south of the property given to her and since she did not lay any claim over that portion by pleading adverse possession and the suit was filed within 12 years of the alleged trespass, the courts below were perfectly justified in granting a relief of recovery of possession and declaration of title in respect of S.A.No.758 of 2001 14 that portion covered by green shade having an extent of 2 cents in Ext.C1(a) plan. The plaintiffs did not file any appeal against the same and as such, the same has become final as regards the plaintiffs claims are concerned. 17. As regards Exts. B1 and B2 are concerned, admittedly the suit was filed by the 2[nd] plaintiff along with his brother in respect of some portion of the property which was given to them by the 1[st] plaintiff, but later it was dismissed for default. So there was no decision on merit and since the 1[st] plaintiff was not a party to the suit, that will not affect her right in the property as well. The question of acquiescence is not a defence in a suit for recovery of possession on the basis of title filed by the plaintiffs. 18. The dictum laid down in **Jose Lalichan and another v.** _**Augustine**_ (2011 (4) KHC 847) is not applicable to the facts of this case as that was a case where in a suit for injunction simplicitor when the identity of the property was disputed, since the plaintiff did not take out a commission to identify the property, this Court has held that when the identity of the property is made an issue, without identification of the property, no decree can be granted in favour of the plaintiffs and remanded the case for giving opportunity to the parties to take out a commission to identify the property. That was not the case in hand. Here there is no dispute regarding the identity of the property or location of the property and even title of the property and a commission has been taken out 15 S.A.No.758 of 2001 and the Commissioner has identified the property and located the trespassed area as well. So under such circumstances, the above decision relied on by the counsel for the appellant is not applicable to the facts of this case. 19. In view of the discussions made above, this Court do not find any reason to interfere with the concurrent finding of the court below on the basis of fact and reverse the finding of the courts below as claimed by the counsel for the appellant. Proper issues have been framed by the court below and the same has been properly answered as well. So there is no substantial question of law arises for consideration and the appeal lacks merit and the same is hereby dismissed. In the result, the appeal fails and the same is hereby dismissed. The decree and judgment passed by the trial court and confirmed by the appellate court are hereby confirmed. Considering the circumstances of the case and relationship between the parties, the parties are directed to bear their respect costs in the appeal. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** /true copy/ cl 16 S.A.No.758 of 2001 **K. RAMAKRISHNAN, J.** ................................. S.A.No.758 of 2001 ............................... 30[th] day of June, 2017. **JUDGMENT**