M. Meharoob v Abdul Nazar and A.S. Salma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939** **RSA.No. 1275 of 2013 ()** **------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 05-06-2013 IN AS 53/2009 of III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM** **AGAINST THE JUDGMENT AND DECREE DATED 08-08-2008 IN OS 282/2005 of RENT CONTROL COURT, THIRUVANANTHAPURAM** ## **APPELLANT/APPELLANT/DEFENDANT:** **------------------------------** **M.MEHAROOB, AGED 45 YEARS,** **S/O.MOHAMMED ABDULLA, RESIDING AT T.C.48/335, SASTHRI NAGAR, KARAMANA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **-----------------------------------** **1. ABDUL NAZAR, AGED 43 YEARS, S/O.AHAMMED KHAN, RESIDING AT CHIRATHALAVILAKATHU VEEDU, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501.** **2. A.S.SALMA, AGED 39 YEARS, W/O.ABDUL NAZAR, RESIDING AT CHIRATHALAVILAKATHU VEEDU, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501.** ## **BY ADV. SRI.B.KRISHNA MANI** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` R.S.A. No.1275 of 2013 B ````````````````````````````````````````````````````````````` _Dated this the 1[st] day of August, 2017_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Challenging the concurrent findings entered by the Additional Munsiff's Court, Thiruvananthapuram in OS No.288/2005 followed by those of the Additional District Court-III, Thiruvananthapuram in AS No.53/2009, the defendant in the suit has come up in Second Appeal. The suit is one for declaration, perpetual injunction and mandatory injunction. 2. The 1[st] plaintiff claims title over plaint A schedule property by virtue of Ext.A4 settlement deed executed by the 2[nd] plaintiff in favour of the 1[st] plaintiff, allegedly based on Exts.A1 and A3 settlement deeds executed by the paternal grandmother and father of the 2[nd] plaintiff in her favour. Ext.A2 is a correction deed whereby the mistake crept in the survey number in Exts.A1 and A3 has been corrected. A RSA.1275/2013 : 2 : portion having an extent of 72 square metres were acquired from the property for the widening of the National Highway, from its northern portion. The defendant has purchased 838 square links of property from the sister of the 2[nd] plaintiff on whom her father had settled the said property through Ext.A9 settlement deed. 3. According to the plaintiff, they had surrendered 25 square feet of space to the defendant and granted permission to the defendant to construct the southern wall of the building of the defendant adjacent to the northern boundary of the property of the 1[st] plaintiff and further by enabling him to put the southern portion of the foot of the pillar for the wall protruding into the portions of the property of the 1[st] plaintiff. Such an understanding was entered into between the 2[nd] plaintiff as the first party and the defendant as the second party, through Exhibit A5 agreement dated 15.10.2000. With out the consent of the 2[nd] plaintiff, the defendant could not have put up his building by constructing RSA.1275/2013 : 3 : the southern wall at the place, where it presently exists. 4. According to the plaintiffs, subsequently, the defendant has violated the terms and conditions contained in Ext.A5, and without the knowledge and consent of the plaintiffs, the defendant made unauthorised construction by putting up a staircase adjacent to the southern wall from the first floor of his building for entering into the second floor and further that, he affixed two windows, one at the southern wall of the first floor and the other one at the southern wall of the 2[nd] floor of his building. As per Ext.A5, the parties had agreed to keep the southern wall as a common wall and further that they had agreed not to affix any windows at the said wall or open such window into each others property. According to the plaintiffs, such unauthorised constructions were made by the defendant in the year 2003, and when the 1[st] plaintiff had pointed it out and questioned it, the defendant had agreed to remove it. Subsequently, the defendant had allegedly made an open declaration that he RSA.1275/2013 : 4 : would not remove it. 5. The defendant has filed a written statement contending _inter alia_ that Ext.A5 agreement was an outcome of coercion and undue influence. According to the defendant, Ext.A5 was not executed with his free consent; whereas, he was forced to execute Ext.A5 solely because of the fact that he would not have been otherwise permitted to continue with the construction of his building. Therefore, it was under duress, coercion and undue influence, Ext.A5 was got executed from him. Further, it has been specifically contended that relief of mandatory injunction sought for as relief (c) in the plaint, is barred by limitation, since the suit was not filed within three years from the date on which the right to sue had accrued. It has been further contended that the plaintiff cannot seek any relief of declaration since they have not approached the court with clean hands. It is contended that as per Ext.A1 and Ext.A3 document, the properties settled on the 2[nd] plaintiff are not properties RSA.1275/2013 : 5 : covered by Ext.A5. 6. It has been further contended that even though, 3 cents of property only were settled on the 2[nd] plaintiff through Exts.A1 and A3, she had assumed that she was in possession of 3.860 cents of property, out of which one cent of property was acquired for the widening of the Nation Highway. Thereafter, she had executed Ext.A4 for an extent of 2.860 cents of property in favour of the 1[st] plaintiff. It has also been specifically contended that the description of the properties are false, incorrect and mischievous and therefore, no relief can be granted based on the description of the property in the plaint. 7. The Second Appeal has been admitted by this Court on the following substantial questions of law in the appeal memorandum: _“(i) When it is admitted by plaintiff as PW1 that the construction of the building belonging to defendant was completed as early as in 2001, is not the_ RSA.1275/2013 : 6 : _suit for mandatory injunction to demolish a portion of that building filed on 17.02.2005 barred by limitation?_ _(ii) When the plaintiff has not identified and located plaint schedule properties with the help of commissioner, is the lower court justified in granting a decree for declaration and injunction regarding a vague property?_ _(iii) When it is evident from ExhibitA5 itself that, it is fabricated by inserting recitals subsequently and when its genuineness is specifically denied and disputed by defendant, is not the burden of proof on plaintiff to show that A5 is a valid document?_ _(iv) When it is specifically contended that plaintiff has no property as described in 'A' schedule, is the Court justified in holding that the extent of plaintiffs' property is not disputed, ignoring the contentino of defendant?_ _(v) Has no the Appellate Court omitted to consider vital admissions and_ RSA.1275/2013 : 7 : _clear evidence in dismissing the appeal?_ _(vi) Has not the Appellate Court abdicated its power and jurisdiction by not considering the contention of defendant and the evidence adduced in the case?_ _(vii) Has not the lower Court omitted to consider the clear admissions of plaintiff rendering the judgment illegal and perverse?_ _(viii) Has not the Court below illegally exercised its jurisdiction in relying on Exhibit-A5, which is a fabricated document on the face of it?_ _(ix) Has not the lower Court egregiously erred in granting the decree without identifying the plaint schedule properties?”_ 8. Heard the learned counsel for the appellant and the learned counsel for the respondents. 9. The learned counsel for the appellant has argued that Ext.A5 cannot be relied on for any purpose since it was RSA.1275/2013 : 8 : devoid of free consent. Apart from that, it has been argued that the descriptions of the property in Ext.A5 itself are mischievous and incorrect and therefore, Ext.A5 has no relevance at all. It has been further argued that the relief of mandatory injunction sought for is barred by limitation on the basis of the admissions of the 2[nd] plaintiff, who was examined as PW1. It has been further argued that the location of the properties fixed by the Commissioner through Exts.C1(a) and C1(b) plans are not based on the descriptions in Exts.A1 and A3. It is argued that in case the descriptions of the properties covered by Exts.A1 and A3 are considered as such, the appellant cannot have any property adjacent to the southern boundary of the appellant's property. 10. _Per contra_ , the learned counsel for the respondents has argued that based on the admissions of the defendant as DW1, he cannot be heard to say that there was no free consent for the execution of Ext.A5. It has also RSA.1275/2013 : 9 : been argued that the windows were affixed and staircase was constructed at the southern wall of the building in the absence of the plaintiffs in the year 2003, and the cause of action for its removal through a decree of mandatory injunction had arisen only from the month of December 2003 and also in 2004 and therefore, the relief of mandatory injunction is not barred by limitation. It has also been argued that when both the parties had executed Ext.A5 with free consent, they are bound by the terms and conditions contained in Ext.A5. 11. Even though the learned counsel for the appellant has argued that Ext.A5 is devoid of free consent, the defendant as DW1, in cross examination, has clearly admitted the execution of Ext.A5, and further admitted that the same was not executed under duress or compulsion. He has categorically admitted that he was not misled by anybody to enter into Ext.A5 agreement. The learned counsel for the appellant has argued that even though a RSA.1275/2013 : 10 : portion of a sentence in condition No.1 in page 2 of Ext.A5 has been inserted in Ext.A5, it seems that the same has been inserted with the knowledge of both the parties to the agreement. It is because of the fact that the said insertion does not create any undue benefit on any of the parties; whereas, it creates further troubles only to the plaintiffs. 12. When DW1 has clearly admitted the execution of Ext.A5 with his free consent, the same is no more open to challenge. When such agreement has been executed and especially when the parties had acted upon Ext.A5, based on which the defendant had accepted the surrender of 25 Sq. ft. of space from the plaintiffs, the defendant is clearly estopped from contending anything regarding the validity of Ext.A5. No doubt, the parties are bound by Ext.A5. The learned counsel for the appellant has argued that Ext.A5 was executed on a mistaken information, when the plaintiff could not have any property adjacent to the southern side of the property of the defendant. RSA.1275/2013 : 11 : 13. The argument forwarded by the learned counsel for the appellant is that the location of the property based on Exts.A1 and A3 cannot be at the locations mentioned in Ext.A5 or those mentioned by the Commissioner in Exts.C1 (a) and C1(b) plans. At the same time, it is evident from Ext.A5 that there is clear admission from the defendant regarding the location of the properties of the plaintiffs. It has been clearly averred in Ext.A5 that the property of the 2[nd] plaintiff is situated at the eastern and southern sides of the property of the defendant. The defendant has shown the boundaries of his property in Ext.A5 as KaramanaKaladi Road at the western side, the property of the 2[nd] plaintiff at the eastern side and the property of the 2[nd] plaintiff at the southern side. Therefore, presently, the defendant cannot be heard to say that the 2[nd] plaintiff or the 1[st] plaintiff has no property adjacent to the southern side of the property of the defendant. Whatever be the locations of the properties covered by Exts.A1 and A3, at the time of RSA.1275/2013 : 12 : execution of Ext.A5, the parties had willingly accepted and acknowledged the locations of their properties based on their possession and enjoyment. It is the case of the plaintiffs that they have excess extent of property when all the properties were the family properties of the ancestors of the 2[nd] plaintiff. 14. It is true that the 2[nd] plaintiff had made an attempt to create a document for an excess extent of property than what was settled on her through Exts.A1 and A3, through the execution of Ext.A4, in favour of her husband, who is the 1[st] plaintiff. However, that attempt cannot give any undue benefit to the defendant to forward any claim on any extent of property being possessed and enjoyed by the plaintiffs. The parties had willingly accepted the southern wall of the building of the defendant as the northern wall of the property being possessed and enjoyed by the plaintiffs. It is a fact that through Ext.A5 the plaintiffs had permitted the defendant to construct the southern wall of the building of RSA.1275/2013 : 13 : the defendant adjacent to the northern boundary of the property in the possession and enjoyment of the plaintiffs on condition that the defendant would not install any windows on that wall and would not open any window into the property of the plaintiffs. 15. Even though the learned counsel for the respondents has argued that the windows were affixed and the staircase was constructed adjoining the said southern wall of the building by the defendant in the absence of the plaintiffs in the year 2003, the own admissions of the 2[nd] plaintiff as PW1 in cross-examination say otherwise. In cross-examination, PW1 has clearly deposed that the defendant's building is a three storied building and its construction had commenced in the year 2000. According to her, the construction was completed in the year 2001. Even though the plaintiffs have a case that the violations were committed by the defendant in the year 2003, the clear admission made by PW1 in her cross-examination, militates RSA.1275/2013 : 14 : against the plaint claim. She has admitted that the construction of the whole building of the defendant was completed in the year 2001. In such case, for getting the windows affixed on the wall to be removed through a decree of mandatory injunction, the plaintiffs ought to have filed the suit within three years from 2001. The suit is filed in the year 2005 only. 16. In the decision reported in _**Sankaranarayana Vadhyar alias Appathura v. Arunachalam and Others** [1960 KHC 520]_ , a learned Single Judge of this Court had held that suits for mandatory injunctions are governed by Article 120 of the old Limitation Act. The corresponding Provision in the Limitation Act of 1963 is Article 113, which says that such a suit has to be filed within three years from the date, when the right to sue accrues. When a relief of mandatory injunction has been sought for, the plaintiffs ought to have filed the suit for getting that relief, within three years from the date, on which the said violations were RSA.1275/2013 : 15 : committed. when the suit was not filed within three years, this Court is of the view that relief (c) claimed by the plaintiffs cannot be granted since it is hopelessly barred by limitation. 17. The question of limitation, in such circumstances, is a mixed question of law and fact. When the said fact has been admitted by PW1 in cross-examination, the trial court ought to have considered the said aspects. Without considering the specific admissions of PW1 in her crossexamination, the trial court has taken the view that the Commissioner, who had visited the property and prepared Ext.C2 had found that the windows were subsequently affixed. At the same time, the period within which the said affixure was made had not been reported by the Commissioner. It seems that in Ext.C2, the Commissioner has reported that the staircase was seen constructed simultaneously with the southern wall, at the time of its construction itself. Whatever it is, when it has been admitted RSA.1275/2013 : 16 : by PW1 in cross-examination that the building was completed in the year 2001, there is no point in further relying on the contradictory versions of the Commissioner in Ext.C2. 18. Apart from all the above, the plaintiffs have no case in the plaint that the southern wall was constructed by complying with the terms and conditions of Ext.A5 and subsequently, in the absence of the plaintiffs, portions were cut and removed from the wall and affixures were made thereafter. Matters being so, the trial court as well as the lower appellate court were carried away in finding that such windows were subsequently affixed and therefore, the relief of mandatory injunction is not barred by limitation. 19. Regarding the other relief sought for, it has to be concluded that the parties are bound by Ext.A5. When the appellant has a case that Ext.A5 is devoid of free consent, the nature of Ext.A5 is that it is voidable at the option of the appellant. In such case, the appellant ought to have sought RSA.1275/2013 : 17 : for a relief for getting Ext.A5 set aside or cancelled. Without having recourse to such a relief, the appellant cannot be heard to say that Ext.A5 cannot be acted upon. 20. Of course, it is true that by violating the conditions contained in Ext.A5, two windows were affixed at the southern wall, and a staircase was also constructed adjoining the southern wall. Even though the same are violations, when the plaintiffs were sleeping over their right to get it removed through a decree of mandatory injunction, the said relief has become time barred. At the same time, when the parties are bound by the terms of Ext.A5, any continued violation will result in recurring cause of action. the defendant has no manner of right or authority to open the windows into the property of the plaintiffs. Therefore, plaintiffs are entitled to have a declaration that the parties are bound by Ext.A5, and further a relief of perpetual injunction to the effect that the defendant shall not open the windows affixed in the southern wall into the plaint A RSA.1275/2013 : 18 : schedule property, being possessed and enjoyed by the plaintiffs. 21. From all the above, it can be safely concluded that this Regular Second Appeal can be allowed in part so far as the relief (c) in the plaint is concerned. Therefore, the judgment and decree passed by both the courts below require a modification to that effect. In the result, this Regular Second Appeal is allowed in part by modifying the judgment and decree passed by both the courts below as follows: (i) It is hereby declared that the parties to Ext.A5 and their successors in interest are bound by the terms and conditions in Ext.A5. (ii) Hereafter, the parties shall scrupulously follow the terms and conditions contained in Ext.A5 in future. (iii) The defendant is restrained by a decree of perpetual injunction from opening RSA.1275/2013 : 19 : the windows affixed at the southern wall of his building, into plaint A schedule property possessed and enjoyed by the plaintiffs. (iv) The relief of mandatory injunction granted by the courts below is set aside. It is held that the plaintiffs are not entitled to relief (c) in the plaint. In the nature of this appeal, the parties shall bear their respective costs. All the pending interlocutory applications in this Regular Second Appeal are closed. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/01/08 // True Copy // PA to Judge