P.E. Bhaskara Kurup v. Palakunath Nangolath Sarojini Amma and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 8[TH] DAY OF JULY 2022 / 17TH ASHADHA, 1944** **SA NO. 243 OF 2002** **AGAINST THE JUDGMENT IN AS 85/1998 OF II ADDITIONAL SUB COURT,KOZHIKODE (JUDGMENT DATED 27.05.1998 IN OS 187/1985 OF PRINCIPAL MUNSIFF COURT, KOZHIKODE-II)** **-----** ## **- APPELLANT [DEFENDANT RESPONDENT]:** P.E. BHASKARA KURUP, S/O.RAGHAVAN NAIR, 'PRASANTHI', KOVUR, NELLIKODE VILLAGE P.O., CHEVAYOOR, KOZHIKODE-17,KOZHIKODE DISTRICT. BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE SRI.JAYKAR.K.S. SMT.M.R.MINI SMT.MEENA.A. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.RAHUL VARMA SRI.V.S.ROBIN SMT.SANJANA R.NAIR ## **- RESPONDENT (PLAINTIFF APPELLANT):** 1 PALAKUNNATH NANGOLATH SAROJINI AMMA, (DIED) D/O.PARVATHY AMMA, KOVUR AMSOM AND DESOM, P.O.CHEVAYOOR, KOZHIKODE-17, KOZHIKODE DISTRICT. **[L.R's impleaded]** ## * **ADDL. RESPONDENTS** 2 PALAKUNNATH NANGOLATH SUKUMARAN NAIR, AGED 66, S/O.SAROJINI AMMA, NELLIKODE AMSOM,KOVUR DESOM KOZHIKODE TALUK, P.O.CHEVAYOOR, KOZHIKODE-17, KOZHIKODE-673 017. **SA NO. 243 OF 2002 -2-** 3 PALAKUNNATH NANGOLATH MOHANDAS NAIR, AGED 64, S/O.SAROJINI AMMA, NELLIKODE AMSOM,KOVUR DESOM KOZHIKODE TALUK, P.O.CHEVAYOOR, KOZHIKODE-17, KOZHIKODE-673 017. *(LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS 2 AND 3 AS PER ORDER DATED 13.01.2020 IN IA.1/2019.) BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SRI.A.P.CHANDRASEKHARAN SR. SMT.DEEPA NARAYANAN SMT.PREETHI. P.V. SRI.M.KRISHNAKUMAR SRI.M.V.BALAGOPAL SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = S. A. No.243 of 2002** **= = = = = = = = = = = = = = = = = = Dated this the 8[th] day of July, 2022** ## **J U D G M E N T** The defendant in a suit for prohibitory and mandatory injunction, is the appellant. The dispute involved centers around the plaint 'C' schedule way. The suit was dismissed by the trial court. The decree was interfered with in appeal, and the suit was decreed in part. 2. Plaint 'A' schedule property belongs to the plaintiff. 'A' schedule consists of three items. On the southern side of plaint 'A' schedule item Nos.1 and 2, is the disputed plaint 'C' schedule way, and to its south is the plaint ‘B’ schedule property belonging to the defendant. To the east of plaint 'A' schedule item Nos.1 and 2, and the 'B' and 'C' schedules is the plaint 'A' schedule item No.3. The Tarwad house of the plaintiff is situated there. **S. A. No.243 of 2002** -: 2 :- 3. A larger extent of property, including the plaint scheduled properties, belonged to the Nangolath Tarwad. The plaintiff and the defendant belong to the family and are first cousins. The plaintiff is the daughter of one Parvathy Amma and the defendant is the son of Parvathy Amma's brother Raghavan Nair. Ext.A1 is the Partition Deed of the year 1965 entered in the family. In the said partition, the plaintiffs branch formed a group and were allotted item Nos.48, 49 and 77 therein. The said properties are the plaint 'A' schedule item nos.1, 2 and 3 respectively. Ext.A2 is the subsequent partition in the plaintiff's branch. In Ext.A1 partition, the defendant’s group, was allotted item No.15 to the said deed. The said property is the plaint 'B' schedule property. In between the plaint 'A' schedule item Nos.1 and 2 and the plaint 'B' schedule property is the plaint 'C' schedule way leading up to plaint 'A' item No.3 property on the east from the western public road. The suit is filed alleging that the **S. A. No.243 of 2002** -: 3 :- defendant trespassed over the plaint 'C' schedule way, which had a width of 7 feet, and reduced a portion of it by putting up a compound wall. The reliefs sought for are, mandatory injunction for restoration of the way, and for prohibitory injunction from obstructing the way. 4. The suit was originally decreed by the trial court declaring a 7 feet wide way. On appeal by the defendant, the first appellate court found that the trial court has based its decree on surmises and that there was no material to find that the plaint 'C' schedule way had a width of 7 feet. The decree and judgment of the trial court was set aside and the matter was remanded back for fresh disposal, with a direction to have the plaint 'A' and 'B' schedules identified based on Ext.A1 Partition Deed and survey. 5. After remand, a Commissioner and Surveyor were deputed, who prepared Exts.C5 report and C6 plan, identifying the properties. Thereafter the trial court found that the existence of the way as claimed by the **S. A. No.243 of 2002** -: 4 :- plaintiff has not been established. It was further held that the plaintiff has not proved the right to use the plaint 'C' schedule way. The plaintiff challenged the same before the first appellate court. The appellate court though found that there is no evidence to find that the 'C' schedule pathway has a width of 7 feet, proceeded to rely on Ext.C6 plan and directed demolition of a portion of the boundary wall constructed by the defendant. It is aggrieved thereby that the second appeal has been filed. 6. Heard learned Senior Counsel Sri.T.Krishnanunni on behalf of the appellant-defendant and Sri.S. Sethumadhavan, learned Senior Counsel on behalf of the respondent-plaintiff on the following substantial questions of law:- (i) Has the plaint 'C' schedule way been identified in Exts.C5 and C6 Commissioner's Report and Plan in tune with the directions in the remand order dated 11.08.1993 in AS 184/1989? **S. A. No.243 of 2002** -: 5 :- (ii) When Exts.C6 plan has been prepared solely based on survey number and possession, is the direction for demolition of the wall sustainable? 7. Though it appears that originally there was a rival claim of title over the plaint 'C' schedule way, the same was not pursued by the parties. Even on the merits, the southern boundary description of plaint 'A' schedule item Nos.1 and 2, and the northern boundary description of the plaint 'B' schedule leaves no room of doubt regarding the existence of a 'nadavaramba'-plaint ‘C’ schedule, in between and also that it doesn’t form part of either the plaint ‘A’ or ‘B’ schedules. The plaint 'C' schedule leads to plaint 'A' schedule item No.3 on the east. It is a pathway that is left in common for the sharers. Though the trial court has entered a finding that the plaintiff has not proved his right over the 'C' schedule way, evidently, on the facts as above, the right of the parties to Ext.A1 for usage of the plaint C schedule-‘nadavaramba' cannot be disputed. Thus **S. A. No.243 of 2002** -: 6 :- it is held that, the plaint 'C' schedule property does not belong either to the plaintiff or to the defendant absolutely, but is a common pathway. It is further held that, both the plaintiff and the defendant have a right of user over the pathway. In fact, as of now, there is practically no dispute on the said aspects. The dispute between the parties is presently confined to, the width of plaint 'C' schedule way. 8. Though Ext.A1 Partition Deed describes plaint 'C' schedule as a 'nadavaramba', it does not mention the width of the 'nadavaramba'. The plaintiff claims that it had a width of 7 feet, which is denied by the defendant. 9. The parties are bound by the remand order dated 11.08.1993 in AS 184/1989, the earlier round of litigation. In the remand order, the first appellate court had specifically directed to have the plaint 'A' and 'B' schedule properties measured as per the title deeds-Exts.A1 and A2, and as per survey. This is to identify the width of the ‘C’ schedule that lies in **S. A. No.243 of 2002** -: 7 :- between. It was so ordered since neither parties have title over the ‘C’ schedule way which lies in between and its width could be ascertained by having the plaintiff's and defendant's properties located on the basis of the basic document of title deed namely, Ext.A1. 10. Exts.C5 and C6 are the report and plan after remand. It does not reveal the existence of a 7 feet width ‘nadavaramba’ in between 'A' and 'B' schedules. The eastern portion of the compound wall constructed by the defendant is seen situated beyond the survey boundary of his property. The first appellate court held that portion to be an encroachment, and accordingly directed removal of that portion. But here it is to be noted that, if survey boundary is to be the basis then, on the western portion, the ‘C’ schedule way is in defendant’s survey number. Therefore, survey boundary cannot be the basis for determination. **S. A. No.243 of 2002** -: 8 :- 11. In the remand order, the appellate court had categorically directed that the properties are to be identified and located with reference to the basic title deed, Ext.A1. It is the document under which the parties trace title and the way is left out. A perusal of Exts.C5 report and C6 plan do not indicate that the properties were so identified. The report and plan seem to suggest that the properties were located based on possession and survey. It is true that the defendant had filed IA 2144/1998 seeking to have Exts.C5 report and C6 plan remitted and that in the said application he did not have a case that the properties were not measured based on the title deed. But it is evident that the properties have not been located as per the title deed and in terms of the directions in the remand order. The mere fact that either of the parties did not raise any objection to the commissioner’s report and plan is of no significance. It is for the Courts to look into the correctness or otherwise of the Commissioners report and **S. A. No.243 of 2002** -: 9 :- plan while granting a decree. (See _**State v. Kodakkat Pocker & Ors [1987 (1) Klt 714]**_ , _**Subash Soman v. State of Kerala [2019 (2) KlJ 729]**_ . It can only be found that Exts.C5 and C6 report and plan have not been prepared based on title and in accordance with the directions in the remand order dated 11.08.1993 in AS 184/1989. A fresh commission report and plan needs to be obtained. The suit needs to be remanded back to the trial Court for the said purpose. Incidentally it is to be noticed that, even in the first appellate Court, the respondent plaintiff had requested for a remand of the suit for a proper identification of the plaint ‘C’ schedule. The request is reflected in paragraph 12 of the appellate Court judgment and it reads thus, _“The learned counsel for appellant submits that at least the suit can be remanded to afford an opportunity to clarify the width of the 'C' schedule property”._ 12. At this point learned senior counsel on either sides would submit that, in Ext.A1, the extent of the **S. A. No.243 of 2002** -: 10 :- properties have been mentioned in cents and in Ares, in addition to the description by middle measurements and that all the three does not seem to tally. Direction could be issued to have the properties identified on the basis of all the three and the one found to be true and correct could be accepted. Anyway, these are matters for the trial court to consider. The trial court could give appropriate directions to the Commissioner and Surveyor. Learned Senior Counsel appearing for the respondentplaintiff would contend that on the western side of the entire property, at the time of Ext.A1, there was only an 'edavazhi' and that the same is now lying as a public road. Possibly portions of the properties of the plaintiff and defendant have been utilised for widening the said way, it is submitted. The trial court can direct the Commissioner to take the same also into consideration while ordering fresh identification of the properties. Substantial questions of law are answered as above. **S. A. No.243 of 2002** -: 11 :- 13. In the result, the decree and judgment of the courts below are set aside. The matter is remanded back to the trial court for disposal de novo in the light of the observations as made above. It is made clear that the issue that survives for determination is only the width of the ‘C’ schedule way. Considering the fact that the suit is of the year 1985, let every endeavour be made to have the suit tried and disposed of within a period of nine months from the date of receipt of a copy of this judgment. Parties to appear before the trial court on 01.08.2022. Sd/- **SATHISH NINAN** **JUDGE** kns/- //True Copy// P.S. to Judge