Narayanan Embrandiri v. Sreenivasan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932** **SA.No. 372 of 1996(C)** **----------------------------AS.87/1991 of PRINCIPAL SUB COURT, PALAKKAD OS.119/1985 of MUNSIFF COURT, ALATHUR** **....................** ## **APPELLANT(S): RESPONDENT/DEFENDANT** **--------------------------------------------------------------** **NARAYANAN EMBRANDIRI, S/O. NARAYANAN EMBRANDIRI, AGED 50 YEARS, PUDUKODE VADAKKE GRAMAM, PUDUKODE AMSOM AND DESOM, ALATHUR TLAUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.P.O.JOSEPH SRI.G.FANY PALLAN** ## **RESPONDENT(S): APPELLANT/PLAINTIFF** **------------------------------------------------------------** **SREENIVASAN, S/O. CHOORAKUNNIL GOPALAN, AGED 56 YEARS, AGRICULTURIST, PUDUKODE AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT.** ## **ADV. SRI.N.P.SAMUEL** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2011, ALONG WITH SA NO. 388 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **P.BHAVADASAN, J.** -----------------------------------------------------SA Nos.372 & 388 of 1996 -----------------------------------------------------Dated this the 17th day of January 2011 ## Judgment Three suits, namely OS No.119/85, 136/85 and 108/85 were jointly tried by the Munsiff's Court, Alathur. Among them, OS No.108/85 was dismissed and the other two suits were decreed. The appellant before this court is the plaintiff in OS No.108/85. He had preferred two appeals before the Sub Court, Palakkad as AS No.80/91 from the judgment and decree in OS No.108/85 and AS No.87/91 from the judgment and decree in OS No.119/85. The lower appellate court dismissed both the appeals. Hence these second appeals. For the purpose of these appeals, the parties and facts are referred to as they are available before the trial court in OS No.119/85. 2. It is not in dispute that the plaintiff in OS No.108/85 and the defendant therein own adjacent properties. The grievance of the plaintiff was that a portion SA 372 & 388/96 2 of the cattle shed, which, according to him, was recently put up by the defendant, was protruding into his property and thereby causing rain water to fall into his property. Therefore, he wanted that portion which projects into his property to be removed. The defendant resisted the claim by pointing out that the cattle shed has been in existence for a long time and therefore, he is not bound to remove it. He also filed two suits namely OS No.119/85 and 136/85 against the plaintiff in OS No.108/85, seeking cutting and removal of the coconut and kariveppu trees slanting dangerously on the cattle shed and the factory shed belonging to him. 3. We are now concerned only with OS No.119/85 filed by him. That related to the cutting of the coconut tree. According to him, the coconut tree was slanting in such a way that it causes threat to his cattle shed and factory shed. So, he wanted the plaintiff in OS No.108/85 to cut and remove the coconut tree. That was resisted by pointing out that the tree stands away from the SA 372 & 388/96 3 factory shed and the cattle shed. In fact, it is contended by the defendant in OS No.119/85 that even if it is slanting as claimed by the defendant, adequate precautionary measures could be taken so that no danger would be caused to the cattle shed and the factory shed. 4. On the above pleadings, separate issues were raised in all the suits. It appears that evidence was adduced in OS No.119/85 and the plaintiff had examined PW1 to 6 and marked Ext.A1. The defendant examined DW1 and 2. Exts.C1 to C7 are the commissioner's reports and plan. 5. On an evaluation of the materials in the case, the trial court came to the conclusion that the cattle shed had been in existence for a long time and therefore, the plaintiff in OS No.108/85 was not entitled to a decree directing the defendant to remove the cattle shed which protruded into his property. As regards OS No.119/85 is concerned, it was found that the threat apprehended by the plaintiff in the said suit against the appellant herein was SA 372 & 388/96 4 genuine and the defendant was asked to cut and remove the coconut tree. Therefore, the appellant suffered a decree in that suit. 6. Aggrieved, he preferred AS No.80/91 from the judgment and decree in OS No.108/85 and AS No.87/91 from the judgment and decree in OS No.119/85. Both the appeals were dismissed. Hence these second appeals. Notice was ordered on the following questions of law raised in the appeals : - “(a) The courts below failed to avert to oral and documentary evidence in the case ; which amounts to error on substantial questions of law. - (b) The findings of courts below are vitiated by non-consideration of relevant evidence or by essentially erroneous approach to the matter, then, this court is not precluded from entering proper findings and under such circumstances, it is a substantial question of law.” SA 372 & 388/96 5 7. The learned counsel for the appellant contended that the courts below were not justified in letting the defendant in OS No.108/85 to retain the protruding portion of the cattle shed. Drawing attention to the commissioner's report, it was pointed out that the commissioner in OS No.108/85 had reported that the cattle shed was only two years old and if that be so, it could have been put up only after the defendant had acquired the property as per Ext.A1 dated 05.04.1975. Unless he is able to show some sort of right to retain the same, he cannot be permitted to retain that portion of the shed, which protrudes into the plaintiff's property. 8. As far as AS No.87/91 is concerned, the learned counsel pointed out that the courts below have not considered the question as to whether any protective measures could be adopted which could avoid the danger apprehended by the coconut tree slanting to the plaintiff's property. In support of the contention that the commissioner's report should not have been lightly ignored, SA 372 & 388/96 6 the learned counsel for the appellant relief on the decision reported in _**Chandan Mull Indra Kumar v. Chiman Lal**_ (AIR 1940 Privy Council 3). The learned counsel also pointed out that as far as SA No.388/96 is concerned, no manner of right whatsoever, is established by the respondent to retain the projecting eaves of the cattle shed into his property. 9. The learned counsel for the respondent relied mainly on the evidence of PWs 2 and 3, who say that the cattle shed was in existence even at the time of purchase of the property by the defendant as per Ext.A1. It was therefore, contended that it is not correct to say that the cattle shed was put up by the defendant after he had purchased the property. Since it was already in existence, he cannot be asked to remove the same. 10. The question is not directly whether the cattle shed was in existence at the time of purchase by the defendant in OS No.108/85 as per Ext.A1. It is significant to notice that both Exts.C5 and C6 commissioner's reports SA 372 & 388/96 7 would indicate that the cattle shed was put up after the defendant had obtained the property. One must notice here that Ext.C5 report is by a commissioner who was deputed in OS No.119/85 at the request of the plaintiff in that suit, who is the respondent herein. That commissioner visited the suit properties in 1989. According to him, the cattle shed looked 10 to 12 years old. The commissioner, who had visited the properties in 1987, was of the opinion that the cattle shed was of only 2 years of age. No objection seems to have been filed against Ext.C5 commissioner's report. In the decision reported in _**Chandan Mull Indra Kumar v. Chiman Lal**_ (supra), it was held as follows : “Interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a court to act as an expert and to overrule the elaborate report of a commissioner whose integrity and carefulness are questioned, SA 372 & 388/96 8 whose careful and laborious execution of his task was proved by his report and who had not blindly adopted the assertions of either party.” 11. The courts below have chosen to rely on the evidence of PWs 2 and 3 to find in favour of the respondent herein. It is seen from the written statement filed by the defendant in OS No.108/85 that he claims adverse possession. The trial court found that it is an easement right. For the said purpose, the trial court relied on the decision in _**Varrey Thulasamma v. Nandula Buchiramiah**_ (AIR 1949 Madras 826). In appeal, the appellate court simply followed the findings of the trial court. 12. First of all, it does not stand to reason as to how the adverse possession and limitation could have been applied in such a case. Normally, the claim of easement right alone can be put forward and that too, a prescriptive right of easement. To acquire prescriptive right of easement, atleast 20 years of use or existence will have to be proved. Of course, it is stated by PWs 2 and 3 that SA 372 & 388/96 9 the cattle shed was in existence even at the time of purchase of the property by the respondent herein under Ext.A1. But, that is not sufficient. 13. Though the learned counsel for the appellant pointed out that Ext.A1 does not make mention of any cattle shed, the schedules mention that what is conveyed to the respondent under Ext.A1 is the building and other structures therein. This would certainly take in cattle shed also. However, PW1 who is the plaintiff in OS Nos.119/85 and 108/85, nowhere in his chief examination specifies any particular right, except to say that the cattle shed was in existence for a long time and he is entitled to retain the same. One must remember that the right claimed by the respondent is something which infringes the absolute right of the appellant. Unless the respondent is able to show that some right recognised by law is available, this plea cannot be accepted. Though adverse possession and limitation are pleaded, there is no evidence in this regard given by PW1, who is the respondent herein and who has filed OS SA 372 & 388/96 10 No.119/85. In the absence of any right so spoken to by him, the courts below could not have non-suited the plaintiff in OS No.108/85. 14. As far as SA No.372/96 is concerned, both the courts below have concurrently found that the coconut tree is dangerously positioned and it has to be removed. The learned counsel for the appellant was unable to show that the courts below have erred in any manner in arriving at such a conclusion. The result is that while SA No.372//96 is without any merits, the appellant in SA No.388/96 is entitled to a mandatory injunction directing the respondent in the said appeal to remove that portion of the eves of the cattle shed which protrudes into the property of the plaintiff. In the result, these appeals are disposed of as follows : (1) SA No.372/96 stands dismissed, confirming the judgment and decree of the courts below. (2) SA No.388/96 is allowed and the judgment and decree of the courts below are set aside. (3) The plaintiff in SA No.388/96 from which OS SA 372 & 388/96 11 No.108/85 arises, is granted a decree for mandatory injunction directing the respondent/defendant in the suit to remove that portion of the eves of the cattle shed which protrudes into the plaintiff's property within three months from the date of this judgment, failing which the plaintiff can seek the aid of court to have it removed . There will be no order as to costs. **P.Bhavadasan, Judge** sta SA 372 & 388/96 12