Pauloose, S/o KuriaKOSE and Annakkutty, D/o KuriaKOSE v Fr. Baby, S/o Chacko and Baby W/o Fr. Baby

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938** **RSA.NO. 390 OF 2003 (D)** **------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 24-02-2003 IN A.S. NO. 146 OF1999 OF THE DISTRICT COURT, ERNAKULAM** **AGAINST THE JUDGMENT AND DECREE DATED 30-06-1994 IN O.S. NO.6 OF 1999 OF THE SUB COURT, MUVATTUPUZHA** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** **----------------------------------** - **1 PAULOSE, S/O. KURIAKOSE, AGED 49 YEARS, KAKKATHUTHADATHIL, MANNATHOOR KARA, THIRUMARADY VILLAGE.** - **2 ANNAKUTTY, D/O. KURIAKOSE, AGED 62 YEARS, KAKKATHUTHADATHIL, MANNATHOOR KARA, THIRUMARADY VILLAGE.** ## **BY ADV. SRI.S.SREEKUMAR** ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** ## **-----------------------------------** - **1 FR. BABY, S/O. CHACKO, AGED 43 YEARS, VADAKKEMANDOLIL, MANNATHOOR KARA, THIRUMARADY VILLAGE, MANATHOOR P.O.** - **2 BABY, W/O. FR. BABY, AGED 41 YEARS, VADAKKEMANDOLIL, MANNATHOOR KARA, MANATHOOR P.O., THIRUMARADY VILLAGE,** ## **BY ADV. SRI.N.P.SAMUEL** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DST** ## **K. HARILAL, J.** ## **= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** **- - - - - - -- - - - - - - - - - - - - - - - - - - -** Dated this the 15th day of November, 2016 ## **J U D G M E N T** The appellants are the defendants in O.S. No.6/1999 on the files of the Sub Court, Muvattupuzha as well as the respondents in A.S. No.146/1999 on the files of the District Court, Ernakulam. The original suit is one for declaration of appellants' title over plaint schedule Anjili tree standing in one acre 15 cents of property and for consequential injunction. The plaintiffs contended that the 1/4[th] girth of the Anjili tree is abutting to defendants' property though the Anjili tree is standing on the land over which the plaintiffs have title and possession under Ext.A1. Therefore, they are entitled to get a declaration, as prayed for. On the other hand, the defendants raised a two folded contention. Firstly, according **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 2 :-** to them, the entire Anjili tree is standing on their property. Secondly, on the western side of the _kayyala_ , they have _'_ kottappad' right having an extend of 5 feet width. 2. On the aforesaid pleadings, both parties adduced evidence consisting of the oral testimony of PW1 to PW3 and DW1 and Ext.A1 and Exts.C1 to C3. After considering the evidence on record, the trial court dismissed the suit on a finding that the plaintiffs cannot exercise any claim of title over the tree, which stands on the _kayyala_ or over the land wherein it stands. Feeling aggrieved, the plaintiffs preferred the aforesaid appeal before the lower appellate court and the lower appellate court reversed the findings of the trial court and made a declaration that the disputed Anjili tree situated **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 3 :-** on the boundary separating between the appellants' property and respondents' property belongs to them in common and both parties are entitled to enjoy the tree either by allowing it to stand or cutting it down and either the parties can take the entire tree by paying half of the market value of the tree to the other party if they choses to do so. But, the appellate court rejected the prayer for permanent prohibitory injunction. The legality and propriety of the aforesaid finding are challenged in this Regular Second Appeal on various grounds, by the defendant. 3. Heard learned counsel for the appellants and learned counsel for the respondents. 4. On admission, this Court have framed the following question of law for consideration in this **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** **-: 4 :-** R.S.A. When the plaintiffs claim absolute title to the Anjili tree and the land in which the tree stands and when the plaintiffs failed to prove their title and possession, whether the lower appellate court was justified in granting a decree in favour of the plaintiffs? Admittedly, the defendants' property lies on the eastern side of the plaintiffs' property. According to the plaintiffs,[1] /4th girth of the said Anjili tree is abutting to the defendants' property. But, according to the defendants, the entire Anjili tree is standing on the defendants' property. So also, they raised a contention that on the western side, they have a 'kottappadu' right having a five feet width. It is not disputed that both plaintiffs and defendants are successors of purchasers only. Both properties **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 5 :-** belonged to Kattel Kudumbam and for the first time, it was partitioned in the year 1086 M.E. and the portion of the east of kayyala was allotted to one 'Chacko' and the portion on the west of kayyala was allotted to one 'Uthup' from the said 'Chacko', the grandfather of the 1[st] defendant purchased the plot, east of kayyala and defendants succeeded that property. Similarly, the children of 'Uthup' succeed the property of 'Uthup' and from them the plaintiffs purchased it in the year 1990. 5. Going by the lower appellate court judgment, it is seen that the 1[st] plaintiff is aged 43 years, and the 2[nd] plaintiff is aged 41 years. Similarly, the 1[st] defendant is aged 49 years and 2[nd] defendant is aged 62 years. It is not disputed that the Anjili tree is of very old one and it stands in **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 6 :-** the kayyala separating the plaintiffs' property and the defendants' property and the kayyala is having more than 60 years of age. Admittedly, the dispute is only a recent development. In view of the age of the Anjili tree and the kayyala and the division of the property as early in the year 1086 M.E., none of the parties are competent enough to speak about the place, where the Anjili tree was originally planted. Therefore, as regards the ownership of the Anjili tree, the oral evidence adduced by both parties loses its relevance and significance. Similarly, in the plaint, plaintiffs have no case that the Anjili tree is one planted by them or their predecessors at any point of time. Similarly, the defendants also have no case that they have planted the Anjili tree, as stands at present. Thus, indeed both sides are **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** **-: 7 :-** equally silent about its past and they are claiming title over the Anjili tree, on the basis of the present location of the Anjili tree in the boundary. Even though, the plaintiffs are purchasers of the property under Ext.A1, the document does not mention about the tree even though it was an old one. To sum up as regards the exact location of the tree, neither the oral evidence of the parties nor their respective sale deeds can be relied. The plaintiffs have purchased the property in the year 1990 only, i.e., just two years before the institution of the suit. As rightly observed by the court below, it is a matter of common knowledge that Anjili trees begin to grow, when the birds drop the seeds from the air. In the absence of any specific pleadings as to planting of the Anjili tree, it can be presumed that **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 8 :-** in the instant case also the tree began to grow, when a bird dropped the seed from the air. Therefore, the present location of the Anjili tree alone is decisive, in determining the ownership and possession over the Anjili tree. 6. It is pertinent to note that there is no pleadings or evidence as regards the origin of the tree or the manner in which their predecessors dealt with the Anjili tree. In short, the scope of enquiry for the determination of the ownership over the Anjili tree is confined to the present lie of the properties and the location of the Anjili tree, as on the date of suit only. It follows that the commission report, which is marked as Ext.C2 is the only available evidence to determine the ownership over the Anjili tree among the plaintiffs and the **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 9 :-** defendants. It has come out in evidence that the Anjili tree is standing fully in the kayyala. The location of the Anjili tree shown by the Commissioner in the sketch is not disputed. The Commissioner has shown complete details about the girth of the tree and the location. Ext.C1 report would show that the disputed Anjili tree was having a girth of 108 inches at the top level of the kayyala and out of that measurement, portion of the tree having 37 inches girth was projecting towards eastern side and the remaining 71 inches of the tree was towards the western side. The commissioner then measured the exposed portion of the trunk of the tree at a point which is 29 inches below the upper level of the kayyala. At that point, the trunk measuring 66 inches of the tree was abutting towards **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 10 :-** plaint schedule property. It is not possible to measure the extreme bottom girth of the tree because it can be done after demolishing the kayyla only. The report further shows that the bottom width of the kayyala was larger than its width at the top. After analysing the evidence brought out by the commission report, the trial court found that the evidence would suggest that the tree was mainly standing on the kayyala itself. After re-appreciating the commission report, the lower appellate court also affirmed the said fining that the tree was mainly standing on the kayyala itself and abutting towards eastern and western properties. In view of the aforesaid fining, both trial court and appellate court relied on the decision reported in _**Achuthan v. Sumithra & Others**_ [1987 (1) KLT 457], **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 11 :-** ## wherein this Court held as follows: _“ The first true test to determined the ownership of a boundary tree lies in the question of fact, where was the tree first planted? If it can be found with a reasonable amount of certainty, as a fact that the tree was planted in one owner's land then the grandal growth of the trunk roots and branches, which leads to trench upon the neighbour's property does not affect the ownership of the tree. However, if it cannot be found inasmuch as the tree must belong to someone, yet neither owner can reasonably be preferred to the other, the only practical and possible unrevelling of the problem is to choose the not inexpiable, but pragmatic and simple rule that the tree whose trunk stands protanto on the land of two coterminous owners, it belongs to them in common.”_ 7. Considering the location of the Anjili tree evidenced by the commission report, it can be safely concluded that none of the parties can claim exclusive right over the Anjili tree. When applying **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 12 :-** the principle laid down in the above decision to the instant case, this Court finds that as rightly held by the court below that the disputed Anjili tree has to be regarded as common to both plaintiffs and defendants and the lower appellate court is justified in granting a lesser relief virtually benefiting both parties. The question of law is answered accordingly. 8. Coming to 'kottappadu' right claimed by the defendants, the only available evidence is the evidence of DW1. None of the documents relied on by the parties gives rights to any inference that a 'kottappadu' right was provided on the outer side of the kayyala. DW1 is incompetent to speak about whether the original owner, who had constructed the kayyala had left out any space out side as **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** ## **-: 13 :-** 'kottappadu', since the kayyala is having more than 60 years and the original partition was effected in the year 1086 M.E. The commissioner has not reported the existence of 'kottappadu' right, as space provided outside the kayyala. It is true that the Commissioner has reported line of trees outside the kayyala on the western side. But, it is also reported that those trees are standing on different levels and merely on that reason, it cannot be presumed that a 'kottappadu' right was provided on the western side of the kayyala. So also, this Court is of the view that the landed properties are divided and separated by boundaries and nobody can claim any right outside the boundary, unless title and the right of recovery of that land is established under law by the decree of a civil **R.S.A. No. 390 of 2003 and Cross Objection No.5 of 2003** **-: 14 :-** court. The title and possession of an immovable property is governed by the boundary fixed under law only and alleged 'kottappadu' right is not supported by any law for the time being in force. Therefore, this Court is not inclined to accept that right also. Thus, the court below is justified in rejecting the contention of 'kottappadu' right also. The impugned judgment passed by the lower appellate court does not call for any interference of this Court. The Appeal and the cross-objection will also will stand dismissed. Sd/- ASK/DST **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**