M.K.KUMARI VALSALA v. S. GOPALA PILLAI and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938 RSA.No. 609 of 2006 (E) ------------------------ AGAINST THE JUDGMENT AND DECREE IN AS NO. 67/2000 of PRINCIPAL SUB COURT,THIRUVANANTHAPURAM DATED 23.12.2005 AGAINST THE JUDGMENT AND DECREE IN OS NO. 1160/1991 of ADDITIONAL MUNSIFF COURT,THIRUVANANTHAPURAM DATED 6.3.2000 APPELLANTS:-(APPELLANTS/DEFENDANTS 2 TO 6) --------------------------------------------------- 1. S.GOPALA PILLAI, PERUMBALAM VEEDU, NALANCHIRA P.O., TRIVANDRUM. 2. S.SREEDHARAN NAIR, RESIDING AT DO. DO. 3. N.NAGAPPAN NAIR, OF DO.DO. 4. S.KRISHNAN NAIR, DO.DO. 5. SARALA, DO.DO. BY ADV. SRI.G.S.REGHUNATH RESPONDENT:- (RESPPONDENT/PLAINTIFF) ------------------------------------ M.K.KUMARI VALSALA, VAVAKKE VEEDU, NALANCHIRA, TRIVANDRUM. BY ADVS. SRI.AYYAPPAN SANKAR SRI.G.SURARSHAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON 07-09-2016 DELIVERED THE FOLLOWING: RSA NO.609/2006 APPELLANTS' EXHIBITS: EXT. B3 - CERTIFIED COPY OF JUDGMENT IN OS NO.1689/94 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM EXT.B4 - CERTIFIED COPY OF DECREE IN OS NO.1689/94 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM EXT.B5 - CERTIFIED COPY OF JUDGMENT IN CRP NO.225/2013 OF THIS COURT EXT.B6 CERTIFIED COPY OF DELIVERY LIST PREPARED BY THE AMIN IN EP NO.541/2009 IN OS NO.1689/94 ON THE FILE OF MUNSIFF'S COURT, THIRUVANANTHAPURAM RESPONDENT\'S EXHIBITS: NIL //TRUE COPY// ## **A.HARIPRASAD, J.** ## **--------------------------------------** ## **R.S.A. No.609 of 2006** ## **-------------------------------------Dated this the 7[th] day of September, 2016** ## **JUDGMENT** At the time of admission of this second appeal, the following substantial questions of law are raised: _“1) Was the plaintiff against whom a decree disallowing her claim founded on prescriptive right of easement in respect of plaint B schedule property in O.S.No.1689/94 and identified as plot MNOP on the file of the Munsiff's Court, Trivandrum, was passed on 20.12.1997 and confirmed in A.S.No.139/01 on the file of the District Court, Trivandrum, entitled to seek a decree for perpetual injunction and putting up of boundaries in respect of the very same property described as plaint schedule item No.3 in the present suit?_ _2) Was not the plaintiff guilty of suppressing the decree in O.S.No.1689/94 and is not the said decree though not inter parties relevant in the light of the decision reported in_ _**Tirumala Tirupati Devasthanams v. K.M.Krishnaiah (JT 1998 (2) SC 231)** ?_ 2. Appellants are the defendants 2 to 6 in O.S.No.1160 of 1991 on the file of the Munsiff's Court, Thiruvananthapuram. Prayers in the suit 2 RSA No.609/2006 are for a prohibitory injunction restraining the defendants from trespassing into the plaint schedule properties or from interfering with the plaintiff's peaceful possession and enjoyment of the properties and also for putting up boundaries of the properties. Parties are hereinafter referred to as plaintiff and defendants for the sake of convenience. 3. Plaintiff claimed ownership and possession over the plaint schedule item Nos.1 to 3 by virtue of two sale deeds and a release deed, viz., Exts.A1 to A3. According to the plaint averments, the property of defendants lies adjacent to the plaint schedule properties. 5[th] defendant filed O.S.No.968 of 1991 before the Munsiff's Court, Thiruvananthapuram against the plaintiff and obtained an order of injunction. Plaintiff filed an objection to the injunction petition and disputed the right of 5[th] defendant to claim any relief against her. The defendants, under the guise of the injunction order, tried to trespass into the plaint schedule properties. They were bent upon doing so for the reason that there was no well defined boundaries to demarcate the properties. 4. Defendants 2 to 5 resisted the suit, contending that it is a counter blast to O.S.No.968 of 1991 filed by the 5[th] defendant. The plaint schedule descriptions are not correct. Plaintiff has no possession over item No.3 in the plaint schedule. It is a pathway leading to the property of the defendants and it is being used as a way openly, peaceably, as of right and uninterruptedly for more than 75 years. Therefore, the defendants have 3 RSA No.609/2006 acquired a prescriptive easement right over item No.3 in the plaint schedule. They never trespassed into the plaintiff's properties. Plaintiff has no right to obstruct the way used by the defendants and others and she has no right to put up a boundary wall so as to hinder the right of way. Hence they prayed for dismissal of the suit. 5. Heard the learned counsel for the appellants (defendants 2 to 6) and the respondent (plaintiff) 6. Learned counsel for the defendants contended that the courts below did not consider the legal effect of misdescribing the properties in the plaint schedule. According to him, without establishing the identity of the properties, the plaintiff has no right to get either a prohibitory injunction decree or fixation of boundary. Although the dispute is centered around item No.3 in the plaint schedule, the learned counsel for the defendants contended that in a suit for injunction, the plaintiff is expected to be honest in his claims and he should come forward with a clean case. It has been vehementally argued by the learned counsel that item Nos.1 and 2 cannot be identified either with reference to measurements or with reference to boundaries or with reference to survey demarcations. In respect of item No.3 in the plaint schedule, the specific contention raised by the defendants is that the plaintiff has no exclusive right over this item, as it is a way leading to many properties, including that of the defendants. 7. Per contra, learned counsel for the plaintiff contended that the 4 RSA No.609/2006 question of identity of the properties does not arise. Plaintiff apprehended trespass by the defendants on the strength of an injunction order in O.S.No.968 of 1991. The 5[th] defendant attempted to trespass into the property and caused obstruction in the plaintiff's enjoyment of the properties. 8. Learned counsel for the defendants contended that in order to establish that the courts below wrongly appreciated the evidence, resulting in substantial prejudice to the defendants, production of certain additional documents has become necessary. Therefore, by invoking Order XLI Rule 27 of the Code of Civil Procedure (in short, “Code”), I.A.Nos.1633 of 2006 and 1831 of 2016 have been filed for receiving documents. The plaintiff opposed the reception of evidence at this stage contending that no grounds have been mentioned for receiving the additional evidence at the second appellate stage. I shall consider the applications in detail in the succeeding paragraphs. 9. The dispute regarding identity is highlighted by the learned counsel for the defendants on the basis of the incongruity in the commissioner's reports. Exts.C1 and C1(a) are the report and sketch submitted by the commissioner initially. Ext.C1 report shows that both the plaintiff and the defendants were present at the time of inspection. In Ext.C1 report, the commissioner has clearly mentioned that item No.3 in the plaint schedule is a way. It is also mentioned that the extent of item 5 RSA No.609/2006 No.3 is two cents and on the eastern side of it, the plaintiff's property and a way; on the southern side of it, Dr.Sreedharan's compound; on the northern side of it, the defendants' property and on the north-western corner, the property belonging to Parukutty Amma are situate. According to the learned counsel for the defendants, the property does not belong to Parukutty Amma, but it belongs to Komala Devi. Ext.C1(a) sketch shows that item No.3 is used as a pathway for many properties, including a private temple. In the report also clear indications have been made by the commissioner to infer that item No.3 in the plaint schedule is being used as a way for access to many properties. 10. Along with a surveyor, the same commissioner again visited the property and submitted Ext.C2 report and Ext.C2(a) plan. Learned counsel for the defendants seriously challenged the lie and location of item No.3 in the plaint schedule (OPLK in Ext.C2(a) plan). According to him, this plan is totally contrary to Ext.C1(a) sketch, where it has been shown that the way touches a third party's property. I have been taken through the deposition of PW2, the commissioner. His deposition, if read in its entirety, will unambiguously show that he miserably failed to identify the property. The first and foremost thing is that PW2 was unable to say on which side of the plaintiff's property the defendants' land lies. It is common knowledge that for fixing boundary between two properties, they should lie contiguous to one another. In this case, there is no material to hold that 6 RSA No.609/2006 the properties of the disputants share any boundary. That apart, PW2 was unaware of the nuances of measurements in accordance with survey demarcations. It can be clearly seen from the deposition of the advocate commissioner (PW2) that he thoroughly failed in his duty to identify the properties either in accordance with the boundaries or in accordance with the survey demarcations. Learned counsel for the defendants took me through the relevant portions of the testimony of PW1 too, which also indicates that he had no idea as to where exactly the properties of the defendants are situate. PW1's evidence also will not salvage the plaintiff's case. It is therefore evident that the courts below granted reliefs to the plaintiff without ascertaining the identity of the properties. 11. Learned counsel for the defendants, relying on Order VII Rule 3 of the Code, contended that it is the statutory duty of the plaintiff to plead the relevant particulars to identify a property, in case a dispute arises. Here, the boundary descriptions with reference to the plaint items do not tally either with the survey demarcations or with the actual boundaries seen on the ground. Therefore, the point canvassed by the learned counsel for the defendants that the courts below decided the issues without giving any credence to the identity dispute is well founded. 12. In this context, the relevancy of additional documents come to fore. Along with I.A.No.1633 of 2006, the defendants have produced the judgment and decree in O.S.No.1689 of 1994. Commissioner’s plan in that 7 RSA No.609/2006 suit was also appended to the decree. Along with I.A.No.1831 of 2016, the defendants have produced certified copy of the judgment in C.R.P.No.225 of 2013 and O.P.(C) No.2446 of 2013 and the delivery list prepared by the Amin in E.P.No.541 of 2009 in O.S.No.1689 of 1994. It is the case of the defendants that the plaintiff suppressed the judgment in O.S.No.1689 of 1994 and the judgment in the appeal against that suit, in which the right of plaintiff over item No.3 in this case has been finalised. The decree in O.S.No.1689 of 1994 will show that the plaintiff instituted the present suit wrongly describing the properties with a mischievous intention. Learned counsel for the defendants contended that in O.S.No.1689 of 1994 the plaintiff’s properties were measured and located. A plan appended to the decree in that suit will show the boundaries and survey numbers of the plaintiff’s properties. In that suit, the present plaintiff was the 1[st] defendant. The decree and judgment in O.S.No.1689 of 1994 are binding on the plaintiff. On a look at the plan and report appended to the decree in O.S.No.1689 of 1994, it can be clearly seen that the commissioner’s plan and report in this case are palpably wrong. Learned counsel for the defendants strongly contended that in order to expose the falsity of the case, the additional documents are produced. It is also contended that O.S.No.1689 of 1994 was instituted subsequent to this suit and therefore the judgment in that case could not be produced earlier. It is a well settled proposition of law that an additional document produced at the appellate 8 RSA No.609/2006 stage by invoking Order XLI Rule 27 of the Code can be received only on establishing the conditions stipulated in the provision. It is clear from the averments in the affidavit along with the applications that some of these documents now sought to be produced were not in existence at the time of institution of the suit. Further, one among them is a judgment passed by this Court. Relying on a decision rendered by the Supreme Court in **Shyam Gopal Bindal v. Land Acquisition Officer ((2010) 2 SCC 316)** learned counsel for the defendants contended that the documents sought to be produced, being judicial orders, having a crucial bearing on the merits of the claim shall not be rejected. Facts that the judgment and decree in O.S.No.1689 of 1994 have become final and it is binding on the plaintiff are unchallengeable. Further, one of the documents sought to be produced is a judgment of this Court in matters filed by the plaintiff and her husband against one Komala Devi (who was the plaintiff in O.S.No.1689 of 1994). This revision petition and a writ petition were filed challenging some orders passed on the execution side in O.S.No.1689 of 1994 and the plaintiff’s contention was rejected by this Court. For the reasons mentioned above, I find that these documents are relevant for the disposal of this case and they have to be admitted in evidence. Since they are judicial orders, decree and other proceedings in an earlier suit, no formal proof is required. Therefore, I am of the view that the additional documents produced can be received and marked by invoking Order XLI Rule 27 of the Code as 9 RSA No.609/2006 Exts.B3 to B6. 13. On a look at the plan appended to the decree in O.S.No.1689 of 1994, it can be seen that item No.3 (disputed pathway) in this case joins on the western boundary towards the south of the property of Komala Devi, the plaintiff in O.S.No.1689 of 1994. Going by the commissioner’s plan in this case, the same way joins the plaintiff’s property at the northern boundary. As the judgment and decree in O.S.No.1689 of 1994 have become final with the plaintiff on the party array, she cannot dispute the correctness of the plan appended to the decree in the above suit. Therefore the present commissioner’s plans and reports for this reason and also for the reason that he has bungled in the witness box cannot be accepted. Hence I find that there is merit in the contention raised by the defendants that the courts below decreed the suit without ascertaining the identity of the property involved in dispute. 14. Learned counsel for the defendants relying on **S.P.Chengalvaraya Naidu v. Jagannath (AIR 1994 SC 853)** and **Indian Bank v. Satyam Fibres (India) Pvt. Ltd. ((1996) 5 SCC 550)** contended that the plaintiff has committed fraud on the court by suppressing the fact that she suffered a setback in O.S.No.1689 of 1994. According to the learned counsel for the defendants, this itself is a sufficient reason for denying any relief to the plaintiff. 15. Per contra, learned counsel for the plaintiff contended that the 10 RSA No.609/2006 parties have clearly understood the case of each other and dispute regarding identity has no relevance in this case. It is also contended that there is no need to identify the entire property as the dispute is only in respect of item No.3. At first blush, it may sound appealing. But, the prayer in the suit is for fixation of boundary separating the properties; then it must be established that they lie touching one another and that there is no definite boundary to separate them. In this context, the lie of the property and description become relevant. In the absence of establishing the identity of the properties, fixation of boundary cannot be done. Not only that, a decree for prohibitory injunction can be granted only in respect of a property with definite identities. It is fundamental that no court shall pass a decree without certainty. Passing vague decrees and unexecutable decrees have been deprecated in various decisions. Therefore, the courts below committed a serious mistake in granting a decree in respect of the properties whose identity was not established. Considering the facts and circumstances of the case, I find that the courts below erred in not attaching due importance to the identity of the properties. 16. Relying on the decision in **Tirumala Tirupati Devasthanams’s** case (supra), learned counsel for the defendants contended that the judgment in O.S.No.1689 of 1994 though not inter-parties is admissible in evidence under Section 13 of the Evidence Act, 1872. As the plaintiff suffered a defeat in that case, she is estopped from raising contentions 11 RSA No.609/2006 against the spirit of the judgment and decree in O.S.No.1689 of 1994. It has been held by the Supreme Court in **Tirumala Tirupati Devasthanams** ’s case as follows: _“In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango v. Narayan Devji Kango & Others (AIR 1954 SC 379), speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K.Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram & Others (AIR 1954 SC 606) held that a previous judgment not inter parties, was admissible in evidence under section 13 of the Evidence Act as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini [1902][ILR 29 Cal. 190 (198) (PC)] that a previous judgment, not inter parties was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and_ 12 RSA No.609/2006 _who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh [1895 ILR 22 Cal 533 (PC)] by Sir John Woodroffe in his commentary on the Evidence Act (1931, P 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sunder [AIR 1934 PC 157 (61 IA 286)].”_ 17. Learned counsel for the plaintiff relying on **S.B.Noronah v.** **Prem Kumari Khanna (AIR 1980 SC 193), Mohammed Sageer v. Prakash Thomas (2005 (2) KLT 400)** and **Josita Antony v. New India Assurance Company Ltd. and others (2006 (1) KLT 393)** contended that the pleadings are not statutes and legalism is not verbalism. It is also contended that it is unfair to put forward contentions on facts which are not covered by the pleadings. The decisions on this point may not salvage the situation in favour of the plaintiff for the reason that in the written statement, the defendants have specifically denied the identity of the properties and the right of the plaintiff to claim any relief in respect of item No.3 in the plaint schedule. 18. To sum up, it has to be found that the questions of law framed by my learned predecessor can be answered only against the plaintiff and in favour of the defendants. For other reasons mentioned above also, the plaintiff has to fail. 13 RSA No.609/2006 In the result, the appeal is allowed. The impugned judgment and decree in O.S.No.1160 of 1991 before the Additional Munsiff’s Court, Thiruvananthapuram and the judgment and decree in A.S.No.67 of 2000 before the Principal Sub Court, Thiruvananthapuram are hereby set aside. The suit is dismissed. Parties are directed to suffer their costs. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks**