Madhu Mohandas v. Jayboy Jacob and Susamma Jacob

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944 RSA NO. 390 OF 2019** **OS 1293/2012 OF PRINCIPAL MUNSIFF'S COURT, TRIVANDRUM AS 23/2017 OF DISTRICT COURT,TRIVANDRUM** ## **APPELLANT/APPELLANT/DEFENDANT:** MADHU MOHANDAS, AGED 62 YEARS S/O.GOPALAN NAIR, RESIDING AT T.C.15/132, VASUMATHY VIHAR, ALTHARA NAGAR, VELLAYAMBALAM, SASTHAMANGALAM, THIRUVANANTHAPURAM-695010. BY ADVS. RAM MOHAN G. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 JAYBOY JACOB, AGED 63 YEARS, S/O.E.JACOB, RESIDING AT T.C.15/132(3), PETROSE, ALTHARA NAGAR, VELLAYAMBALAM, SASTHAMANGALAM, THIRUVANANTHAPURAM-695010. 2 SUSAMMA JACOB, AGED 53 YEARS, W/O.JAYBOY JACOB, RESIDING AT T.C.15/132(3), PETROSE, ALTHARA NAGAR, VELLAYAMBALAM, SASTHAMANGALAM, THIRUVANANTHAPURAM-695010. BY ADVS. SRI.V.G.ARUN (K/795/2004) SRI.NEERAJ NARAYAN SMT.V.JAYA RAGI SMT.INDULEKHA JOSEPH FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 10.01.2023, THE COURT ON 30.01.2023 DELIVERED THE FOLLOWING: R.S.A.No.390/2019 2 ## **M.R.ANITHA, J** ****************** R.S.A.No.390 of 2019 ----------------------------------------------Dated this the 30[th] day of January, 2023 ## **JUDGMENT** This R.S.A has been directed against the judgment and decree in A.S.No.23/2017 on the file of District Court, Thiruvananthapuram which in turn arise out of the judgment and decree in O.S.No.1293/2012 on the file of Munsiff's Court, Thiruvananthapuram. 2. Defendant is the appellant. (Parties would hereafter be referred as per their status before the trial court). Suit is one for fixation of boundary and permanent prohibitory injunction. Plaintiffs are husband and wife. First plaintiff is employed abroad and is represented by his wife/second plaintiff through power of attorney executed by him. Plaintiffs purchased plaint A schedule property having an extent of 4.50 cents with building from the R.S.A.No.390/2019 3 defendant as per Document No.1977/2008 of S.R.O Sasthamangalam and it is demarcated on all sides except the western side. Property was measured at the time of purchase and boundary stones were laid on north and south corners of western boundary. Mutation was effected. Defendant owns some property on the north-west side of plaint A schedule property. 3. As per the sale deed and as agreed between the plaintiffs and defendants, an extent of 0.5 cents of property on the western side of total 5 cents owned by the defendant was set apart for providing a private road with a width of 1 meter for access to plaint A schedule property and defendant's property on the north west of plaint A schedule property. That way is described as plaint B schedule property. After the purchase of the property, plaintiffs permitted the defendant to continue his residence in the building situated in the plaint A schedule property until the completion of the construction of his house in the property situated on the north west of plaint A schedule. At the request of defendant, no compound wall was constructed on R.S.A.No.390/2019 4 the western boundary of plaint A schedule property separating from B schedule property for having easy access to the defendant for transporting the building materials to the construction site. Defendant undertook to construct the boundary wall on the western side of plaint A schedule property on completion of construction of his house. Though he completed the construction of the house, no compound wall was constructed, as agreed. During summer vacation in 2012, when the plaintiffs and daughters were away from plaint A schedule property, defendant removed boundary stones on the south and north corners of western boundary of plaint A schedule property and erected an iron gate on the western boundary annexing a portion of plaint A schedule property to a width of 1.5 meter. Some plastering with cement was also made in the said portion joining with the B schedule pathway to make it appear as a 2.5 meter width road to his property. Now, plaint A and B schedule properties are lying as a compact plot. The plaintiffs filed petitions before Tahsildar and District Survey Superintendent to measure the plaint A R.S.A.No.390/2019 5 schedule property and demarcate the western boundary. Complaint was also preferred before the Secretary of Thiruvananthapuram Corporation against the illegal acts of the defendant. But, with no result, hence the suit. 4. Defendant filed written statement contending that there was a private pathway on the western side of the property of 5 cents held by him which is in use of the defendant and several relatives. 4.5 cents of property was sold to the plaintiffs leaving 0.5 cents of property to widen that way and he is paying tax with respect to that 0.5 cents of property. He has been residing in his family house No.T.C 15/1532 and never resided in the house in plaint A schedule property. Immediately after the sale of plaint A schedule property, common pathway was widened by the joint effort of defendant and his relatives using 0.5 cents of property in the presence and with the consent of plaintiffs. As part of widening, the plaintiffs demolished front portion of the compound wall of plaint A schedule property and put up iron grill on that side. In continuation of that iron grill, iron gate was R.S.A.No.390/2019 6 installed at the entrance of the pathway to avoid usage of the way by the public. Electricity, water and telephone connections of more than five families are taken through that way. Plaintiffs were given permission to use that way. Defendant has no intention to take forcible possession of any portion of plaint A or B schedule properties. 5. PW1 was examined and Exts.A1 to A12 were marked from the side of the plaintiffs. DW1 to DW3 were examined and Exts.B1 and B2 were marked from the side of the defendant. CW1 and CW2 were examined and Exts.C1 to C2(a) were also marked. 6. The learned Munsiff decreed the suit fixing 'NI' line in Ext.C2(a) plan as the western boundary of plaint A schedule property. Permanent injunction, as sought for, is also granted. Against which defendant filed appeal and the first appellate court, on re-appreciating the facts, circumstances and evidence, confirmed the judgment and decree passed by the trial court. Aggrieved by the same, the appellant approached this Court in R.S.A.No.390/2019 7 Regular Second Appeal. 7. Notice was issued to the respondents and both sides were heard. Lower court records were called for and perused. 8. According to the learned counsel for the appellant/defendant, suit filed for fixation of boundary alone without a prayer for recovery of possession is not maintainable since, even at the time of filing the suit, B schedule way has been in existence. It is also contended that the two wicket gates were provided from plaint A schedule property to B schedule way which would prove the case of the defendant that the pathway was constructed with the consent and surrender of the property by the plaintiffs. It is also his case that the evidence adduced in this case would prove that there was a pre-existing pathway and only for increasing the width of the existing pathway that half cent of property was left out from the 5 cents while selling 4.5 cents of property to the plaintiffs as per Ext.A1. He would further contend that there was acquiescence on the part of the plaintiffs since the suit has been filed after 9 months of the alleged R.S.A.No.390/2019 8 construction of the pathway. It is further contended that Ext.C2 and C2(a) are not admissible since it has not been prepared in consonance with the dictum laid down in **Sabu v. Sasi : 2022(2) KHC 435 : 2022 (2) KLT 722.** Further the learned counsel relies on **Aduvanni Saidu & Others v. Aduvanni Moidutty : 2010 (4) KHC 520 : ILR 2010 (4) Ker.338 : 2010(4) KLT 407** and contend that once a grant is always a grant and after granting property for the formation of B schedule pathway plaintiffs have no right to dispute the existence of the B schedule way. 9. The learned counsel for the respondents/plaintiffs, on the other hand, would contend that the defendant has no dispute with regard to the title of the plaintiffs and plaintiffs have not admitted that they are out of possession and hence there is no need to seek relief of recovery of possession. Defendant has no case in the written statement that plaintiffs surrendered the property and there is no pre-existing way, as alleged by the defendant. There is no acquiescence on the part of the plaintiffs R.S.A.No.390/2019 9 as complaints have been preferred before the authorities immediately after the trespass into plaint A schedule property. It is also his contention that there is no connection between Ext. B1 and Ext.A4 and the pathway described in Ext.B1 is not identified. 10. Admittedly, plaintiffs purchased plaint A schedule property from the defendant as per Ext.A1 having an extend of 4.5 cents. Ext. A4 is the prior title deed of plaint A schedule which would reveal that the defendant obtained 5 cents of property as per the settlement deed executed by his mother. Half cent of property out of 5 cents has been admittedly left out on the western side of 4.5 cents and the specific recital in Ext.A1 is that it is for usage to the plaintiffs and the defendant jointly as pathway and no construction should be carried out in that area and it is further provided that the jenm right of the way would be vested with the defendant. 11. The specific case of the defendant is that further west to the 5 cents of property covered by Ext. A4 there was a R.S.A.No.390/2019 10 pathway for ingress and egress to his property situated on the North-West of plaint A schedule property as well as the property situated further north belonging to his sister. In order to increase the width of the way that this half cent of property was left out while selling plaint A schedule property to the plaintiffs. But it is pertinent to note that the property description in Ext.A4 would show that it is situated on the west of the property comprised in survey 499. Obviously there is no mention regarding any way on the west of the property covered by Ext. A4. If at all there was a pre-existing way on the west of the property covered by Ext.A4 the western boundary of the property in Ext A4 would have been shown as pathway instead of survey 499. 12. Defendant also produced Ext.B1 which is the property belonging to the sister of the defendant which is situated further north to his property situated on the north-west of plaint A schedule property. On looking at the boundaries of Ext.B1 boundary description shows that the property covered by it is also situated on the west of the property comprised in survey R.S.A.No.390/2019 11 499 and it is also described that it is situated on the north of the road. That is relied on by the defendant to contend that the reference of road in Ext.B1 is with respect to plaint B schedule pathway. But the commissioners report would reveal that only a portion of that property situated on the north is abutting the alleged B schedule pathway. Moreover the evidence of the defendant itself would belie the existence of a pre-existing pathway on the west of property covered by Ext. A4. Admittedly he has property on the north west of plaint A schedule property wherein he is residing. During his evidence he would depose that on the south of his property the property of Devarajan abutting the road on the south is situated and that his property is not abutting the southern CSM road. But further he categorically admit that from that way another way is leading to his property . He also admit that the property now he is residing is obtained in family partition. Though he agrees to produce that partition deed it was not produced. It would indicate that there is another way from the southern CSM road to the property obtained by him in R.S.A.No.390/2019 12 family partition and the defendant wanted to suppress that fact and that is why the partition deed by which he obtained the property in which he is residing is not produced before the court. So also DW2 the brother-in-law of the defendant admitted that the property covered by Ext.B1 is not adjacent to the plaintiffs property and no attempt was made from the side of the defendant to identify the road described on the southern boundary of the property covered by Ext.B1. As rightly found by the first appellate court the prior document with respect to the property covered by Ext.B1 is document No.2278 of 1966 of Chala SRO whereas the basic document of Ext. A1 that is Ext. A4 traces the title to sale deed number 59 of 1972 of Chala SRO purchased by the mother of the defendant from one Sarojini Amma. Hence the property covered by Ext.B1 and A4 are entirely of different origin. So the evidence adduced in this case is quite insufficient to prove that there was a pre-existing way on the west of property covered by Ext. A4. 13. The next question is whether width of B schedule way R.S.A.No.390/2019 13 has been increased with the consent of the plaintiffs as alleged by the defendant. The specific allegation in the plaint is that the B schedule way was constructed encroaching into plaint A schedule property while plaintiffs and daughters went to the first plaintiff’s family house in April – May general vacation of academic year 2012. The plaintiffs produced Ext.A6 copy of complaint dated 17-05-2012 addressed to District Survey Superintendent, Ext.A7 copy of complaint to Tahsildar, Thiruvananthapuram dated 19-05-2012, Ext.A8 copy of complaint to District Collector, Thiruvananthapuram dated 18-06-2012, to show that she has approached the authorities against the trespass committed by the defendant. It is true that during evidence on one occasion PW1 deposed that she requested the defendant for redressal of grievance for about one year and since he did not withdrew she initiated legal steps. That is quite natural because it is from the defendant that plaintiffs purchased schedule property and he is their immediate neighbour also. It is further to be noted that the defendant during cross R.S.A.No.390/2019 14 examination categorically admitted that B schedule way was constructed in a week. That would probabilise the case of the plaintiffs that while she and daughters were away this act was done by the defendants. Defendant on one occasion deposed that the property including the western courtyard of the plaintiffs is being used as way with the oral consent of plaintiff. He categorically admitted that consent was not obtained in writing. The commissioners report would reveal that the western courtyard of the plaintiffs has also been taken for constructing the way. It is highly improbable that plaintiffs will give consent to construct the way through the courtyard. 14. The plaintiffs produced A5 the approved plan of the house in the plaint A schedule property and A5(a) permit which would reveal that the setback on the west of the house is 1.50 meters, but at present as per Ext.C2(a) plan, B schedule way is now passing through the western courtyard of the plaintiffs’ property. Defendant during examination admitted that he obtained permit Ext.A5 as per building rules and no exemption R.S.A.No.390/2019 15 was obtained and the plan in his possession was handed over to the plaintiffs. Hence naturally there will be minimum set back on the western side of the proposed building. That fact also probabilise the case of the plaintiffs regarding the trespass into plaint A schedule property and constructing a way through the courtyard of the plaintiffs. 15. Defendant also advanced a contention that the width of the road situated on the southern side has been increased and there might have been diminishion in extent of plaint A schedule property due to the widening of that road. In reply to Exts.C2 and C2(a) Commissioner's report and plan, defendant contended that the loss of property of the plaintiffs may be due to the widening of the road on the south. But, as rightly found by the courts below, there was no such contention raised by the defendant in the written statement. No evidence in that regard is also adduced. The specific averment in the plaint that property covered by Ext.A1 is well demarcated except on the western side is not seen challenged in the written statement. The entire R.S.A.No.390/2019 16 contention in the written statement is with regard to plaint B schedule pathway and its existence and use by the defendant and predecessors. During evidence, defendant also admitted that, at the time of sale of 4.5 cents to the plaintiffs on the northern boundary, there was a compound wall and there was a boundary on the eastern side and southern boundary is road and on the west he constructed boundary and further, he categorically admitted that while the property was in his possession, it was having boundaries on all sides and from that, 4.5 cents have been sold to the plaintiff and at that time, there were boundaries on the south east and north. During crossexamination of plaintiffs, it was brought out that after the agreement when she inspected the site, there was clear compound walls on three sides except the western side. So, the contention of the defendant that shortage of extent of plaint A schedule property may be due to the widening of the Corporation road situated on the south, is also without any pleadings and proof and has been rightly negatived by the courts below. R.S.A.No.390/2019 17 16. The learned counsel for the defendant raised serious objection with respect to Ext.C2 and C2(a) the commission report and plan on the ground that it has been prepared based on resurvey measurements and it is also his contention that no ladder or other requisites for measurement of property are provided in the plan and no survey stone was noted to start the measurement for locating the plaint A schedule property. But he would admit categorically during evidence that at the time of purchase by the mother there was a boundary on the eastern side and there was a compound wall on the north and survey stone on the west. PW1 also deposed during cross examination that after the agreement the property was measured and at the time of inspection there were compound wall on three sides except on the west. So, it has come out from the evidence of PW1 and DW1 that there was well defined boundaries on the east, north and south of the plaint A schedule property at the time of purchase by the plaintiffs. 17. CW2 the Taluk Surveyor who prepared C2(a) plan R.S.A.No.390/2019 18 deposed that the measurement started from the north eastern corner from c point and there was clear boundary in that point. Since this is a case in which the defendant sold 4.5 cents of property as per Ext.A1 to plaintiffs from the total 5 cents covered by Ext.A4 in view of the existence of well defined boundaries of plaint A schedule on three sides the measurement carried out by the Taluk surveyor with the aid of re survey plan is only to be upheld. So the decision cited in **Sabu v. Sasi** referred above, has no application to the fact situation of this case. Hence, Exts.C2 and C2(a) the commissioner's plan and report has been rightly accepted by the courts below to fix the western boundary of plaint A schedule property. 18. The next argument is with regard to the maintainability of the suit for fixation of boundary without a prayer for recovery of possession. Learned counsel for the defendant in this context, placed reliance on **Anjil Vellachi and Others v. Mamuni Bhaskaran alias Vattayil Bhaskaran : 2009 (3) KHC 728 : 2009 (4) KLT SN 6** . That was a suit filed R.S.A.No.390/2019 19 for fixation of boundary without any claim for recovery of possession. In that case, it was also held that the suit for fixation of boundary cannot be a shortcut or substitute for recovery possession. The facts of that case would go to show that the earliest title deed of the plaintiffs, Ext.A1 prove that 54 cents of land was sold by the father of the defendant to the husband of the first plaintiff. After measurement, 54 cents were demarcated as a particular plot and disputed portion is marked in yellow colour. It has come out that 54 cents covered by the title deeds of the plaintiffs would be satisfied only if the yellow shaded plot is also included. But, the Commissioner noted row of old trees standing in north south separating the eastern property of the plaintiffs and a level difference of the plaintiffs' plot from the yellow shaded plot also has been noted. The entire plot in possession of the defendant having extent of 65 cents is also identified. In the said circumstances, since the suit was only for fixation of boundary without any claim for recovery possession it was held that even if the yellow shaded plot covered title deeds R.S.A.No.390/2019 20 of the plaintiffs are not in possession of the plaintiffs, they cannot have the boundary fixed in the disputed boundary line and boundary can be fixed only on the line co-terminus with their possession. So, the fact situation of that case seems to be quite different from the case in hand. 19. Though the learned counsel placed reliance on **P.Narayanan Nair v. E.Achuthan Nair and Another : 1973 KHC 58 : AIR 1974 Ker.51 : 1973 KLT 299** , the facts of that case has no application to the case in hand. 20. In this case, specific case of the plaintiffs is that they are not out of possession of B schedule property. Immediately after the trespass committed at the instance of the defendant, complaints were filed before the authorities and request was also made to the defendant to withdraw from trespass as borne out from the evidence of PW1 and within nine months, the suit has been filed. So, the facts and circumstances would not prove that the defendant is in settled possession of the encroached property. R.S.A.No.390/2019 21 21. It is relevant in this context to quote **Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan & Ors [2014 (2) KHC 108** ] and **Arikkulangara Kunhikkeloth Righesh Babu & Anr v. Pullanhodan Kunnoth Gopalan Nambiar (Died) by LRs. & Ors. [2014 (4) KHC 294]** wherein it has been held that a casual act of possession, stray or intermittent act of trespass would not mature into “settled possession” and “settled possession” must extend over long period and acquiesced by the true owner. Paragraph No.18 of the said decision is relevant to be quoted, which reads thus: _'Possession' is a polymorphus term. It may have different meaning in different context. Meaning of 'possession' depends on the context in which it is used. The concept of 'settled possession' is not so fluid as to accommodate the case on hand. A casual act of possession, stray or even intermittent act of trespass would not mature into 'settled possession'. It was so held by the Hon'ble Supreme Court in Munshi Ram v. Delhi Administration. The Hon'ble Supreme Court had also occasion to deal with the term 'settled possession' in Puran Singh v. State of Punjab. There it was explained that 'settled_ R.S.A.No.390/2019 22 _possession' must extend over sufficiently long period and acquiesced in by the true owner. So far as the case on hand is concerned there is nothing in evidence to show that the true owner had acquiesced in the alleged possession of the narrow strip of land by the defendant. So much so, it cannot be said that the defendant was in settled possession of that narrow strip of land which lies along the boundary so as to contend that the suit for mere fixation of boundary or injunction cannot be sustained. The plea raised by the defendant that unless the plaintiff sues for recovery of possession of that narrow strip of land, the plaintiff is not entitled to get the boundary fixed along the line 'EF' demarcated by the Advocate Commissioner must thus fall to the ground. Bearing in mind the principles of law adumbrated by the Division Bench in P. Narayanan Nair's case, affirmed by the Hon'ble Supreme Court, I have no hesitation to hold that the defendant was not in settled possession of the narrow strip of land so as to uphold his plea that the suit for mere fixation of boundary is unsustainable._ 22. In this case, trespassed area, as borne out from Ext.C2(a) plan is also 0.29 Ares 0.716 cents. The trespassed area is a strip of land and defendant during examination categorically R.S.A.No.390/2019 23 admitted that the construction of the road was made within one week. So, all those factors would only leads to a conclusion that the defendant is not in settled possession of the narrow strip of land which lies along the boundary of the plaintiffs which was purchased by him from the defendant as per Ext.A1 sale deed. Since the trespassed area is only a strip of land, the principles laid down in **Anjil Vellachi** referred above also will not apply so as to find that a suit for fixation of boundary without a prayer for recovery of possession is not maintainable. 23. It has already been found that the defendant has got a contention that with permission of the plaintiffs and in their presence that they have constructed the way including the courtyard of the plaintiffs. But the plaintiffs did not admit that fact and the facts and circumstances also would not go to show any such consent given by the plaintiffs. Since the defendant could not establish their settled possession of the encroached portion of plaint A schedule property which has been marked in Ext.C2(a) plan, the plaintiffs have got every right to get their R.S.A.No.390/2019 24 boundary fixed as 'NI' line in Ext.C2(a) plan as has been concurrently found by the courts below. 24. With regard to the contention regarding acquiescence, it has already been found during the discussion of facts that there was no acquiescence on the part of the plaintiffs in the construction of the way encroached into the plaint A schedule property and immediately they have approached the authorities and since their grievance was not redressed they approached the Civil Court and filed the suit. It has also come out from the evidence of DW1, the defendant, that the way has been constructed within a period of one week which only probabilise the case of the plaintiffs that while she and her daughters went to her family house during summer vacation, this illegal act of trespass has been committed by the defendant and his men. Immediately on return, she approached the various authorities and ultimately filed the civil suit within nine months. So, the question of acquiescence will not arise. 25. Learned counsel for the defendant has also got a R.S.A.No.390/2019 25 contention that once a grant, always a grant and he also placed reliance on **Aduvanni Saidu & Others v. Aduvanni Moidutty : 2010 (4) KHC 520 : ILR 2010 (4) Ker.338 : 2010(4) KLT 407** . In that decision, as per the partition deed, provisions were made for kannidavazhi, pond and well, leaving in common for all the sharers and it was held that the plaintiff who has come into possession of one of the items covered by that deed, is having a valid right, as claimed, over that way, pond and well, and the challenges raised by the defendants disputing such claims are found to be meritless. It is also held that in the matter of grant, needless to point out, the parties are governed by the terms of grant and none of them can turn around and dispute such grant for the reason that the grant is not available to the other party. Under an easement by grant, the party who is entitled thereto is in fact having a title in the land for the enjoyment so provided and its extinguishment at the volition or act of a third party or under the circumstances covered by S.47 of the Indian Easements Act, which are applicable to other rights of easement, R.S.A.No.390/2019 26 cannot be pressed into service to deny such grant. 26. In the present case, Ext.A1 only provides that 1/2 cents of property out of total 5 cents is left out on the western boundary of 4.5 cents sold to the plaintiffs for ingress and egress of both parties. The plaintiffs have no dispute in the right of the defendant or the restriction in using the said 1/2 cent portion of land for ingress and egress. Dispute of the plaintiffs is with regard to the encroachment made by the defendant to her 4.50 cents of land and reducing the extent which, as per the measurement in Ext.C2, and C2(a) at present is only 3.77 cents. So, the decision cited above has no application to the case in hand. 27. It is also the specific contention of the learned counsel for the plaintiffs that no claim was made with regard to easement by grant by the defendant before the court below and no issue also framed in that regard. Hence, as rightly contended by the learned counsel for the plaintiffs, without any pleading the defendant cannot bank upon any claim of easement by grant R.S.A.No.390/2019 27 over B schedule property. 28. Hence on a close evaluation of the judgments and decree passed by the courts below and facts and circumstances, I am of the considered view that the courts below have appreciated the facts and circumstances and evidence in a correct perspective and rightly fixed the boundary of plaint A schedule property as 'NI' line in Ext.C2(a) plan and a permanent injunction from trespassing upon the plaint A schedule property as borne out by Ext.C2(a) plan also has been granted. I do not find any substantial question of law emerging for consideration for entertaining this second appeal. In the result, appeal is found to be devoid of any merit and hence dismissed. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge