Parassala Sivanandan and Vilasini v. G. Vasanthakumari

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934 SA.No. 775 of 1998 (A) ---------------------AS.233/1990 of I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM OS.581/1986 of PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM APPELLANT(S)/RESPONDENTS/DEFENDANTS: ------------ - (*)1. PARASSALA SIVANANDAN, RESIDING AT LATHA BHAVAN, VALIYAVILA, THIRUMALA, THIRUVANANTHAPURAM. (DIED.RECORDED) 2. VILASINI, W/O.SIVANANDAN, RESIDING AT LATHA BHAVAN, VALIYAVILA, THIRUMALA, THIRUVANANTHAPURAM. (*)IT IS RECORDED THAT THE 1ST APPELLANT IS NO MORE AND IN THE NATURE Q AND CIRCUMSTANCES OF THE CASE THE 2ND APPELLANT IS PERMITTED TO PROCEED WITH THE MATTER WITHOUT IMPLEADING THE LHRS. OF DECEASED A1 AS PER THE ORDER DATED 03.03.2011 VIDE MEMO BEARING C.F.1327/2011 DATED 22/2/2011. BY ADVS.SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAI SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S)/APPELLANT/PLAINTIFF: -------------- G.VASANTHAKUMARI, RESIDING AT KEEZHEVILAKATHU VEEDU, VALIYAVILA, THIRUMALA, THIRUVANANTHAPURAM. BY ADVS. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) SMT.K.V.P.JAYALEKSHMY SMT.A.V.PRIYA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------S.A. No.775 of 1998 -------------------------------------Dated this the 17[th] day of December, 2012.** ## **JUDGMENT** Though notice was ordered on all the substantial questions of law framed in the memorandum of appeal, on hearing the learned counsel on both sides it appears to me that the substantial question of law requiring decision by this Court has to be re-framed. Accordingly, the following substantial question of law is framed for a decision: “Whether in the absence of a properly surveyed plan of the properties, it was legal and proper for the courts below to have accepted the case of the respondent/plaintiff that the disputed compound wall is a common party wall and based on that, granting relief to the respondent/plaintiff?” 2. The second appeal arises from the judgment and decree of the I Additional District Court, Thiruvananthapuram in A.S.No.233 of 1990 reversing the judgment and decree of the Principal Munsiff's Court, Thiruvananthapuram in O.S.No.581 of 1986. 3. According to the respondent/plaintiff, the plaint A schedule belongs to her as per Ext.A1, assignment deed dated 22.01.1981. The plaint B schedule is the property situated on the west and belongs to the 2[nd] appellant. In between, there is a compound wall which the respondent says, is the common boundary 2 SA No.775/1998 wall belonging to the 2[nd] appellant (1[st] appellant expired). The respondent alleged that infringing that right of her, the 2[nd] appellant and the deceased 1[st] appellant constructed a latrine adjoining the compound wall using the the same as one of its walls. An allegation of violation of the Building Rules is also raised. The respondent therefore, wanted a decree for prohibitory and mandatory injunction to direct the 2[nd] appellant and the deceased 1[st] appellant to remove the latrine. 4. The 2[nd] appellant and the deceased 1[st] appellant contended that the respondent has no right over the compound wall. They claimed that the compound wall is entirely within the property belonging to the 2[nd] appellant. They also claimed that the latrine was put up not on 12.06.1985 as pleaded by the respondent but, it is in existence since long. 5. The trial court was not impressed by the contention raised by the respondent, found against the plea that the latrine was put up on 12.06.1985 and non-suited the respondent. 6. In appeal at the instance of the respondent, the first appellate court referred to Ext.C1, report submitted by the Advocate Commissioner and observed that there is no possibility for a pathway along eastern side of the compound wall and which formed part of the property of the 2[nd] appellant. 3 SA No.775/1998 Based on Ext.A1, the first appellate court reversed the judgment and decree of the trial court and granted a decree in favour of the respondent. That judgment and decree are under challenge in this second appeal. 7. It is contended by the learned counsel for the 2[nd] appellant that the judgment and decree of the first appellate court are erroneous as it is without any material that the first appellate court has, in reversal of the judgment and decree of the trial court found that the compound wall is common party wall belonging to the 2[nd] appellant and the respondent. According to the learned counsel, since the prayer is for a mandatory injunction, the respondent could succeed only on proving her claim of title over the compound wall. According to the learned counsel, in the absence of a properly measured plan of the properties, based on Ext.C1, report alone the first appellate court was not right in granting a decree in favour of the respondent. It is also contended that the contention of the respondent that the latrine was constructed on 12.06.1985 is falsified by Ext.C1. 8. The learned counsel for the respondent has contended that though the properties of the 2[nd] appellant and the respondent are not measured and a plan obtained, it is possible to find in favour of the claim made by the respondent over the compound wall based on Ext.C1. It is further contended that since the 2[nd] appellant has raised a contention that the compound wall exclusively belonged to her, burden was on her to prove that claim. No such evidence is adduced. The learned counsel contends that in view of the 4 SA No.775/1998 documentary evidence let in, there is no possibility of there being a pathway left by the 2[nd] appellant on the east of the compound wall. According to the learned counsel, if that contention of the 2[nd] appellant is found to be false, it follows that the compound wall belongs to both. 9. It is not disputed that the plaint A and B schedules originally belonged to one Kamapalan and Ammukutty as per partition deed No.3203 of 1115 ME. As per that partition, 13 cents on the western side was allotted to Kamapalan while, the 15 cents on its east in survey No.63 was allotted to Ammukutty. In that partition deed, a provision was made for a way having width of 5 links (in survey No.53?) 10. Out of the 13 cents allotted to Kamapalan as per partition deed No.3203 of 1115 ME, 12.75 cents was purchased by the respondent as per Ext.A1 (in survey No.63). The 15 cents allotted to Ammukutty was again partitioned as per Ext.B2, partition deed No.2718 of 1957. 7.5 cents was allotted to Vilasini while the remaining 7.5 cents was allotted to Gomathi. Thereafter, Ext.B1, exchange deed was executed between Gomathi and Vilasini as per which 8 cents (of the 15 cents referred above) towards north was allotted to the 2[nd] appellant while the remaining 7 cents on its south was allotted to Gomathi. It is on the east of the said 15 cents and west of the plaint A schedule that the compound wall is in existence. 5 SA No.775/1998 11. It is the contention of the 2[nd] appellant as revealed from paragraph 3 of the written statement that the plaint A schedule includes a portion of the plaint B schedule (belonging to the 2[nd] appellant) as well and that the wall separating the properties was constructed by the 2[nd] appellant and others within their property. She has also a contention that the pathway was left on the east of the said compound wall. 12. The first appellate court referred to Ext.C1, report of the Advocate Commissioner, in paragraph 13(a) of the judgment and stated that in the nature of lie of the property there was no possibility of the way being situated eastwest as stated in the partition deed No.3203 of 1115 ME. The first appellate court concluded that the possibility is that the way referred to in the partition deed lie north-south. The first appellate court observed that in the above circumstances the claim of the 2[nd] appellant that the pathway is left on the east of the compound wall and that formed part of her property cannot be accepted. That is the basis for the first appellate court deciding in favour of the case pleaded by the respondent and granting the relief. 13. I am afraid, the said view of the first appellate court cannot be sustained. The respondent wanted relief from the court on a plea that the compound wall is the common party wall of the 2[nd] appellant and the respondent. That is denied by the 2[nd] appellant who claimed absolute title over the wall. I am not inclined to think that it was the responsibility of the 2[nd] appellant to show that the compound wall exclusively belonged to her, for, it is the respondent who 6 SA No.775/1998 prayed for reliefs based on a plea that the wall is a common party wall. Therefore, the burden lay with the respondent to show that she has half right over the compound wall. 14. Under Sec.39 of the Specific Relief Act a mandatory injunction is granted to prevent the breach of an “obligation”. The expression 'obligation' is defined in Sec.2(a) of the said Act as including every duty enforceable by law. In other words, there must be a duty on the part of the 2[nd] appellant which the court can enforce. To have a 'duty' for the 2[nd] appellant, there must be a corresponding 'right' for the respondent. Viewed in that line, when a relief of mandatory injunction was prayed for, it was for the respondent to show that she has right over the compound wall as pleaded by her. 15. Since mandatory injunction is prayed for, that must rest on the claim of title made by the respondent over the compound wall. Unfortunately, no attempt was made by the respondent to identify the plaint A and B schedules with the assistance of a surveyor and with reference to the documents of title and other records if any required. In **K.B. Ambujakshy Amma and Another v.** **Gopi and Another (1989 [2] KLJ 705, paragraph 4** ) it is held that in a suit on title (there also, the dispute related to a boundary wall), absence of a properly measured plan is fatal. I stated that since mandatory injunction is claimed, the respondent was obliged to prove the title she claims over the compound wall. In the absence of a properly measured plan, no finding is possible as to the title claimed by the parties over the compound wall. In that circumstances, merely 7 SA No.775/1998 based on the surmises and conjunctures arising from what the Advocate Commissioner has reported as to the lie of the properties the first appellate court could not grant relief to the respondent. 16. It is contended by the learned counsel for the respondent that even otherwise, the latrine put up by the 2[nd] appellant is liable to be removed as it violates the Building Rules. However, in fairness the learned counsel has conceded that the judgment and decree of the first appellate court does not proceed on that basis. Therefore, that contention cannot be urged in this second appeal. 17. Though learned counsel for the 2[nd] appellant has urged for a dismissal of the suit, I am not inclined to think that such a course would resolve the dispute involved. The dispute whether the compound wall belongs to the 2[nd] appellant exclusively, or, it is a common party wall of the 2[nd] appellant and the respondent would remain unresolved. Therefore, it is not appropriate that the suit is dismissed for the mere reason of the respondent failing to take a survey commission to measure the properties. I am inclined to think that notwithstanding that the suit is of the year, 1986 and the second appeal is filed in the year, 1998, it is my painful responsibility to send the case back to the trial court for a proper decision. 8 SA No.775/1998 18. The question whether the construction made by the 2[nd] appellant is in violation of the Building Rules also is left open for decision by the trial court if it arises from the pleadings. 19. It is pointed out by the learned counsel for the 2[nd] appellant that Gomathi to whom as per Ext.B1, exchange deed the seven cents on the south of property of the 2[nd] appellant is allotted is a necessary party since as per the version of the respondent, the compound wall is situated on the eastern side of her property as well. According to the learned counsel, without the said Gomathi or her representatives if any also on the party array, no decision is possible as regards the claim of title over the compound wall. The question whether Gomathi or her representatives if any is/are necessary or proper party to the suit is a matter which the respondent has to advert to. 20. The trial court shall if applied for by the respondent appoint a survey commission and get the suit properties measured and identified with reference to the documents of title the parties rely on and other material documents if any and decide on the rival contention regarding title over the compound wall. The trial court also shall consider if it arises from the pleadings whether the construction made by the 2[nd] appellant is in violation of the Building Rules and at any rate, is liable to be removed. 21. The substantial question of law framed is answered as above. 9 SA No.775/1998 Resultantly, the second appeal is allowed by way of remand as under: i. Judgment and decree of the I Additional District Court, Thiruvananthapuram in A.S.No.233 of 1990 and of the Principal Munsiff's Court, Thiruvananthapuram in O.S.No.581 of 1986 are set aside. ii. O.S.No.581 of 1986 is remitted to the Principal Munsiff's Court, Thiruvananthapuram for fresh decision in the light of the observations made above after giving both sides opportunity to take necessary steps in the matter and adduce further evidence if any. iii. Trial court is directed to dispose of the matter as early as possible giving it top priority. iv. Parties shall appear in the trial court on 15.01.2013. Registry shall send back the records forthwith. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **Cks** SA No.775/1998 10 **Thomas P. Joseph, J.** **S.A.No.775 of 1998** **JUDGMENT** **17[th] December, 2012.**