Leelamma and Oommachan v. Surendran, Sreedevi Surendran and Koshy John (RSA Nos. 504/2019 & 556/2019)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** **RSA.No.504 of 2019** **AGAINST THE ORDER/JUDGMENT IN AS 210/2012 of ADDITIONAL DISTRICT JUDGE - III, MAVELIKKARA DATED 29.11.2018** **AGAINST THE ORDER/JUDGMENT IN OS 275/2011 OF THE MUNSIFF COURT,KAYAMKULAM DATED 9.10.2012** ## **APPELLANT/S:** **1 LEELAMMA AGED 65 YEARS W/O.OOMMACHAN, PUTHENPURACKAL VEEDU, BHARANIKKAVU THEKKUM MURI, KATTANAM VILLAGE, MAVELIKKARA.** **2 OOMMACHAN, AGED 74 YEARS,S/O.JOHN PUTHENPURACKAL VEEDU, BHARANIKKAVU THEKKUM MURI, KATTANAM VILLAGE, MAVELIKKARA.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.RAJAN G. GEORGE** ## **RESPONDENT/S:** **1 SURENDRAN AGED 63 YEARS S/O.NARAYANAN, KALAKKATTETHU VEEDU, KOMALLUR MURI, CHUNAKKARA VILLAGE, MAVELIKKARA, PIN-690534 2 SREEDEVI SURENDRAN, AGED 59 YEARS W/O.SURENDRAN, KALAKKATTETHU VEEDU, KOMALLUR MURI, CHUNAKKARA VILLAGE, MAVELIKKARA, PIN-690534** **3 KOSHY JOHN AGED 57 YEARS PUTHENPURACKAL VEEDU, EDAKKUNNAM MURI, NOORANADU VILLAGE, PIN-690571** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.6.2019 ALONG WITH RSA.556/2019, THE COURT ON 08.07.2019 DELIVERED THE FOLLOWING:** 2 [ RSA 504/2019 & RSA.556/2019 ] **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** **RSA.No.556 of 2019** **AGAINST THE ORDER/JUDGMENT IN AS 163/2015 of ADDITIONAL DISTRICT JUDGE - III, MAVELIKKARA DATED 29-11-2018** **AGAINST THE ORDER/JUDGMENT IN OS 275/2011 of MUNSIFF COURT,KAYAMKULAM DATED 09-10-2012** ## **APPELLANT/S:** **1 LEELAMMA, AGED 65 YEARS W/O.OOMMACHAN, PUTHENPURACKAL VEEDU, BHARANIKKAVU THEKKUM MURI, KATTANAM VILLAGE, MAVELIKKARA. 2 OOMMACHAN, AGED 74 YEARS S/O.JOHN, PUTHENPURACKAL VEEDU, BHARANIKKAVU THEKKUM MURI, KATTANAM VILLAGE, MAVELIKKARA.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.RAJAN G. GEORGE** ## **RESPONDENT/S:** **1 SURENDRAN, AGED 63 YEARS S/O.NARAYANAN, KALAKKATTETHU VEEDU, KOMALLUR MURI, CHUNAKKARA VILLAGE, MAVELIKKARA-690505. 2 SREEDEVI SURENDRAN, AGED 59 YEARS W/O.SURENDRAN, KALAKKATTETHU VEEDU, KOMALLUR MURI, CHUNAKKARA VILLAGE, MAVELIKKARA-690505.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.6.2019 ALONG WITH RSA.504/2019, THE COURT ON 08.07.2019 DELIVERED THE FOLLOWING:** 3 [ RSA 504/2019 & RSA.556/2019 ] ## **JUDGMENT** Suit was for injunction. Defendants 1 and 2 raised a counter-claim seeking declaration of title, fixation of boundary, recovery of possession and injunction. The suit was dismissed. The counter-claim was decreed. The plaintiffs filed two appeals. One challenging the dismissal of the suit. The other against the decree in the counter-claim. Both the appeals met dismissal. RSA 504/2019 is the appeal challenging the decree confirming the dismissal of the suit. RSA 556/2019 is filed against the decree in the counter-claim. 2. The case of the plaintiffs is this: The plaint schedule property measures 15 ares and 53 sq mtrs. The land is comprised in re-survey no.141/14 of Kattanam village. The old survey number was 233/8B. The property was allotted to the share of the second plaintiff under a partition deed (Ext B1). He transferred a portion of the property to the first plaintiff under a registered document. The plaintiffs are spouses. The suit property lies as a single compact plot in the joint possession of the plaintiffs. The property on the west of the plaint schedule property was allotted to the brother of the second plaintiff under the same partition deed. The said western property devolved upon the 3[rd] defendant on the demise of his father. The plaint schedule property and the property on its west were separated 4 [ RSA 504/2019 & RSA.556/2019 ] by a barbed wire fence. Defendants 1 and 2 purchased the property of the 3[rd] defendant. Thereafter defendants 1 and 2 demolished the house in the said property. At that time they dismantled a portion of the barbed wire fence. The defendants are to be restrained by injunction from trespassing into the plaint schedule property, destroying its western boundary fence and from committing any waste in it. 3. Defendants 1 and 2 who had a counter-claim had the following contentions: The extent of the property allotted to the second plaintiff under Ext B1 partition deed was 12.24 ares comprised in old survey no.233/8B. Its extent was not 15.53 ares. The suit is filed claiming title to more extent of land than obtained by the second plaintiff under Ext B1. The plaintiffs were paying tax for 11.93 ares of land only. The extent of the property allotted to the father of the 3[rd] defendant under Ext B1 was 6.07 ares. The property of the plaintiffs and the property of the 3[rd] defendant were separated by a barbed wire fence. Defendants 1 and 2 purchased the property of the 3[rd] defendant under Ext B4 sale deed. The building in the said property was demolished by defendants 1 and 2, but they did not dismantle the boundary fence. Taking advantage of the absence of defendants 1 and 2 in their property, the plaintiffs encroached into a portion of the western property and annexed the said portion to their property. 5 [ RSA 504/2019 & RSA.556/2019 ] It was done by shifting the fence further west. Item no.1 in the schedule to the written-statement is the property purchased by defendants 1 and 2 from the 3[rd] defendant. The said property measures 6.07 ares and is comprised in resurvey no.141/14. Item no.2 in the schedule to the written-statement is the property measuring 13.93 ares allotted to the second plaintiff under Ext B1. Item no.3 in the schedule to the written-statement measures 44 sq mtrs. Item no.3 is the land annexed by the plaintiffs to their land. 4. The 3[rd] defendant in his written-statement supported the contentions of defendants 1 and 2. The plaintiffs filed written-statement against the counter-claim and reiterated the contentions in the plaint. 5. The plaintiffs adduced no oral or documentary evidence. DWs 1 to 6 were examined and Exts B1 to B12 were marked on the side of the defendants. Exts C1 to C3, X1 and X2 were also marked. 6. Heard the learned counsel for the appellants/plaintiffs. 7. The property of the plaintiffs is on the immediate east of the property of defendants 1 and 2. The dispute between the plaintiffs and defendants 1 and 2 is essentially a boundary dispute. In between the property admitted to be the property of the plaintiffs and the property admitted to be the property of 6 [ RSA 504/2019 & RSA.556/2019 ] defendants 1 and 2 which they purchased from the 3[rd] defendant, there is a tiny plot measuring 44 sq mtrs. This is the disputed property. The same is shown as item no.3 in the schedule to the written-statement. This item no.3 is part of the property of the plaintiffs or part of the property of defendants 1 and 2 is the precise dispute. 8. The plaintiffs adduced no evidence to prove their claim in the disputed property. None of them mounted the witness-box to speak to their claim. No document was produced by them. Evidence is nil in support of their claim in the disputed land. It is in their possession, which is why defendants 1 and 2 raised a counter-claim seeking recovery of possession of it. This perhaps is the reason why the plaintiffs chose to adduce no evidence. Their decision not to adduce evidence was fatal to their suit. They were not supposed to refrain from adducing evidence when the suit was contested on the ground that they trespassed into the property of defendants 1 and 2. Oral evidence was to be adduced at least to prove their cause of action to seek injunction. It is so particularly when there was a counter-claim seeking recovery of possession of the disputed property. The reluctance of the plaintiffs to go to the witness-box to speak to their case and their fear to face cross-examination should mean that they had to hide something from the court. 7 [ RSA 504/2019 & RSA.556/2019 ] They could not have expected to receive a decree of injunction even if they were hopeful of defeating the counter-claim. The suit and the appeal against the decree dismissing the suit were liable to be dismissed. The trial court did no mistake in dismissing the suit. The appellate court was correct in dismissing AS 210/2012 which was the appeal against the dismissal of the suit. No substantial question of law is involved in RSA 504/2019 to admit it. The same is liable to be dismissed. 9. The counter-claim of the defendants was decreed as follows: Their right in, possession of and title to item no.3 in the schedule to the written-statement were declared. They were allowed to recover the said property which was shown in Ext C1 plan as plot EFGH. The eastern boundary of the said property was fixed along the GH line of plot EFGH. They were allowed to put up boundary along the said line. The plaintiffs were directed to remove the existing barbed wire fence put up at EF line in Ext C2. They were restrained from demolishing the boundary signs of item no.1 property shown in the schedule to the writtenstatement. 10. The property of the plaintiffs and the property of defendants 1 and 2 belonged to one Koshy John. He was the father of the second plaintiff and the paternal grandfather of the 3[rd] defendant. The property of Koshy John was partitioned by his 8 [ RSA 504/2019 & RSA.556/2019 ] heirs after his death under Ext B1 partition deed in 1991. As per Ext B1, P.J.Koshy, the father of the 3[rd] defendant, was allotted 5.56 ares of land comprised in original survey no.233/8 and the second plaintiff was allotted 12.24 ares of land comprised in the same survey number. It was after the execution of Ext B1 the resurvey was conducted and finalised. Exts X1 to X1(f) are documents pertaining to the resurvey. The resurvey records show that the second plaintiff was in possession of 13.93 ares and the father of the 3[rd] defendant was in possession of 6.07 ares although the extent of the property allotted to the second plaintiff and the extent of the property allotted to the father of the 3[rd] defendant were shown in Ext B1 as 12.24 ares and 5.56 ares respectively. Both the second plaintiff and the father of the 3[rd] defendant were holding properties more than the extent shown in Ext B1. It is true that the title to the disputed property cannot be decided solely basing on the resurvey. But such records can be taken into account if other convincing evidence is available. 11. It appears that after the resurvey, the property held by the second plaintiff and the property held by the father of the 3[rd] defendant were assigned different sub-division numbers to the same resurvey number. Going by the schedule to the written-statement, item no.1 which has come to the hands of 9 [ RSA 504/2019 & RSA.556/2019 ] defendants 1 and 2 from the 3[rd] defendant is comprised in resurvey no.141/14/2 and item no.2 held by the plaintiffs is comprised in resurvey no.141/14/3. This distinction in the subdivision number shown in the schedule to the written-statement is not seen disputed by the plaintiffs in the written-statement filed by them against the counter-claim. There is no evidence that the rival claimants of the disputed property or their predecessors-in-interest raised any objection before or after the finalisation of the resurvey. The learned appellate judge stated that the revenue authorities permitted the adjacent property owners to remit basic tax in accordance with the resurvey and in consonance with the extent of lands found in their ownership and possession. It is thus clear that the plaintiffs and the father of the 3[rd] defendant were aware of the resurvey and that they were convinced of their ownership and possession as verified at the time of resurvey. On measurement of the properties, the advocate commissioner (DW6) and the taluk surveyor (DW5) found that going by the extent and the survey records, the disputed properties should form part of the properties of defendants 1 and 2. Their claim on the disputed property is therefore well-founded. 12. The property allotted to the father of the 3[rd] defendant in Ext B1 partition deed was gifted by him to the 3[rd] defendant 10 [ RSA 504/2019 & RSA.556/2019 ] under Ext B2 settlement deed. The subject-matter of the gift was the land measuring 6 acres and 7 sq mtrs. It is also shown in Ext B2 that the property gifted is on the western side of the land measuring 13 1/3 ares. What the father of the 3[rd] defendant stated in Ext B2 may not be binding on the plaintiffs, but it is an indication that during undisputed times the father of the 3[rd] defendant was holding the entire item no.1 in the schedule to the written-statement as his property after the resurvey. This is a circumstance relevant when considered in the light of other circumstances, some of which have already been stated and some are yet to be stated. 13. The two adjacent properties were separated by a barbed wire fence. This is an admitted fact. There is dispute whether the fence stood at the place where it stands now as alleged by the plaintiffs or its position was further east along the GH line in Ext C1 plan. DW2 gave vital evidence in this connection. He is a private surveyor. He spoke that he measured the property of the 3[rd] defendant when it was proposed to be sold to defendants 1 and 2. DW2 testified that on measurement he found that the extent of the property possessed by the 3[rd] defendant was 6.07 ares within enclosed boundaries. Nothing could be pointed out to reject the evidence of DW2. His evidence can be relied on to find that the boundary fence was 11 [ RSA 504/2019 & RSA.556/2019 ] not at its present position, but along the GH line in Ext C1 plan taking in the disputed property. 14. The depositions of DWs 5 and 6, the taluk surveyor and the advocate commissioner respectively, suggest that on measurement the property of defendants 1 and 2 was found short by 44 sq mtrs. The said 44 sq mtrs of land is item no.3 in the schedule to the written-statement. It was seen annexed to the property of the plaintiffs. The learned appellate judge rightly stated that the factual position noted at the site and the extent found on measurement support the evidence of DW1, the first defendant. His evidence that the fence was shifted further west by the plaintiffs should be accepted since there is nothing to suspect his evidence and also since contra evidence is absent. 15. The plaintiffs came to the court with a false case. They stated that as per Ext B1 the second plaintiff was allotted 15.53 ares of land. The extent of the property shown in the plaint schedule is also 15.53 ares. But the extent shown in Ext B1 is only 12.24 ares. At the time of resurvey the plaintiffs were found in possession of 13.93 ares. Without the support of any document and contrary to what is stated in their own title deed, they simply claimed 15.53 ares of land. The plaintiffs had to explain their claim that they had 15.53 ares of land in their ownership and possession. It appears that they thought it wise 12 [ RSA 504/2019 & RSA.556/2019 ] to skip the witness-box to free them from giving an explanation. One of them should have mounted the witness-box to face crossexamination. In this connection it is apposite to refer to the decision of the appex court in **Vidhyadhar vs Manikrao (AIR 1999 SC 1441)** . It is held that where a party to the suit does not appear into the witness-box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. An adverse inference should be drawn against the plaintiffs. 16. As stated by the learned appellate judge, the trial court was right in allowing the counter-claim except declaring the possession of defendants 1 and 2 in the disputed property. Declaring possession of defendants 1 and 2 in the disputed property was only a mistake as stated by the appellate court. It was only a mistake since the relief of recovery of possession was decreed by the trial court. RSA 556/2019 also lacks merit. No substantial question of law is involved in that appeal too. The same is also liable to be dismissed. 17. Both the appeals are dismissed. ## **Sd/-** **A.M.BABU** SKS/2.7.2019 **JUDGE** 13 [ RSA 504/2019 & RSA.556/2019 ]