Premkumar s/o Surendran v Usha Rani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 21ST DAY OF JUNE 2013/31ST JYAISHTA 1935** ## **RSA.No. 1211 of 2012 ()** **------------------------** **AGAINST THE JUDGMENT IN AS 125/2010 of II ADDL.SUB COURT,ERNAKULAM DATED 19-01-2012** **AGAINST THE JUDGMENT IN OS 267/2007 of II ADDL.MUNSIFF COURT, ERNAKULAM DATED 21-11-2009** ## **APPELLANT(S)/APPELLANT /DENFENDANT`:** **----------------------------------------------------------------------** **PREMKUMAR S/O.SURENDRAN, H.NO.35/308-A SUJAPREM, AUTOMOBILE ROAD MAMANGALAM , COCHIN-25** **BY ADV. SRI. JAYASANKAR.B.** ## **RESPONDENT(S)/RESPONDENT/PLAINTIFF:** **----------------------------------------------------------------------** **USHA RANI, W/O.NATARAJAN, AGED 46 YEARS EL-1876/34, CURZ VILLA, KARAMS ROAD ELAMAKKARA P.O.** **BY ADV. SRI.T.N.HAREENDRAN(CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2013, ALONG WITH RSA NO.1263/2012 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. Nos. 1211 & 1263 of 2012 -----------------------------------------Dated this the 21[st] day of June, 2013 ## **J U D G M E N T** The appellant in R.S.A. No.1263/2012 is the plaintiff in O.S. No.439/2007. His appeal R.S.A. 1211/2012 is directed against O.S. No.267/2007 where he is the defendant. 2. Nagamani, the predecessor in interest of the plaintiff and defendant, owned and was in possession of 7.386 cents which was obtained as per Ext.B1 sale deed dated 9.4.1981. Ext.B2 is the settlement deed dated 1.7.1981 executed by Nagamani, mentioned above, in favour of her son – Surendran, who is the father of the appellant, which is in respect of the property covered by Ext.B1. The assignee under Ext.B2 re-conveyed the property to his mother – Nagamani as per Ext.A1 sale deed no.196/1998. On the same day Nagamani executed sale deed no.197/1998 in favour of the defendant Usha Rani. ## **R.S.A. Nos. 1211 & 1263 of 2012** **-2-** 3. As per Ext.B2 settlement deed dated 1.7.1981, only 3.750 cents of land, on the western portion of the entire property measuring 7.386 cents, was settled in favour of the appellant's father – Surendran. It was that property that was returned by Surendran to Nagamani as per Ext.A1. It was that 3.750 cents of land, covered by Ext.A1, which was assigned to the appellant -Premkumar, who is the son of Surendran. As per Ext.B3, what was sold by Nagamani to the appellant was 3.630 cents. 4. It is vehemently argued by the learned counsel for the respondent that the property obtained as per Ext.A1, which is corresponding to Ext.B4, is the same property which was covered by Ext.B2 -the settlement deed of 1981 as per which the property mentioned therein was settled by Nagamani to the appellant's father – Surendran. There is evidence to show that the house situated in that property ## **R.S.A. Nos. 1211 & 1263 of 2012** **-3-** was constructed by Surendran availing a housing loan and it was that property he subsequently assigned to Nagamani along with the building situated therein bearing no.35/884. Therefore, the contention that the respondent constructed a building in such a way as to encroach into a portion of the appellant's property is found to be bereft of any merit. 5. The evidence is clear that the house was constructed by the appellant's father Surendran himself, while he was the owner of the said property measuring 3.750 cents, which had been settled in his favour by his mother – Narayani. It was that property measuring 3.750 cents which was sold by Surendran to Narayani, that was sold by her to the respondent herein along with the building bearing no.35/884. Hence, as said earlier, the contention that the building situated in that property was constructed by the respondent encroaching into the appellant's property ## **R.S.A. Nos. 1211 & 1263 of 2012** **-4-** is nothing but a tissue of falsehood, because the house bearing no.35/884 was in existence even long prior to the date of execution of Ext.A1. 6. The learned counsel for the respondent would submit that since admittedly the Corporation Canal was dug and widened while the property was in the possession of the appellant's father – Surendran, he alone could have surrendered a small portion of the land for the purpose of widening the drainage canal. The appellant contends that since a small portion of land was surrendered by the respondent for widening the canal, there was reduction in the extent held by the respondent and so the respondent encroached into a portion of the property held by the appellant. That plea is unacceptable since the evidence would show that the canal was widened when the said plot was in the possession of Surendran, the father of the appellant. ## **R.S.A. Nos. 1211 & 1263 of 2012** **-5-** 7. It is pointed out by the learned counsel for the respondent that when Ext.A1 sale deed no.196/1998 was executed in favour of the appellant, the title of Nagamani in respect of balance extent of 3.750 cents, being the western portion, was accepted and recognised by Surendran and as such it is not open to the appellant to contend that Nagamani was not in possession of that much extent of land so as to assign the same to the respondent. It was the very same property that was purchased by the respondent as per Ext.A2. 8. The lower appellate court has also pointed out that since the building no.35/884 was in existence long prior to the date of execution of the sale deed by Nagamani in favour of the respondent and since water connection, electricity connection, cable connection etc were in existence inside the property covered by Ext.A2, that also ## **R.S.A. Nos. 1211 & 1263 of 2012** **-6-** would belie the case advanced by the appellant that the respondent encroached into the appellant's property and put up the construction mentioned above. 9. On a proper analysis of the evidence it could be found by the courts below that the appellant was not in possession of the property of that much extent of land as claimed by him and that the theory put forward by him that the respondent had encroached into the plaintiff's property is devoid of any merit. 10. It is vehemently argued by the learned counsel for the appellant that the suit filed by the respondent is a mischievous one since no recovery of possession was sought though there is a clear averment in the plaint that while constructing the compound wall the appellant herein had encroached into a portion of the respondent's property and ## **R.S.A. Nos. 1211 & 1263 of 2012** **-7-** if that be so the remedy available to the respondent was to sue for recovery of possession after seeking a declaration of title to that effect. According to the learned counsel a mere suit for fixation of boundary, in such circumstances, can only be treated as a shortcut method adopted by the respondent to avoid a prayer for recovery of possession. Reliance has been placed on the decision of this court in **Anjil Vellachi and others v. Mamuni Bhaskaran alias Vattayil Bhaskaran – 2009 (3) KHC 728** . 11. The learned counsel for the respondent would submit that, in fact, the case of the appellant before the courts below was that he did not encroach into any portion of the property belonging to the respondent. Correct boundary was fixed when the Advocate Commissioner had inspected and measured the property. There is no evidence to show that the appellant had reduced any portion of the ## **R.S.A. Nos. 1211 & 1263 of 2012** **-8-** respondent's property and that the appellant is in unlawful possession of the same so as to seek a prayer for recovery of possession. So much so that contention must fall to the ground. 12. In Ext.C1 the Commissioner has reported that on the western side of the property shown in the schedule to the plaint in O.S. No.267/2006, which is the suit filed by Usha Rani the respondent herein, there is a Canal and on the northern side of the said property there is a pathway. The eastern boundary of the plaint schedule property is the property of the appellant herein and the southern boundary is the boundary of one Gopalakrishnan Nair. The Commissioner has stated that in order to fix the eastern boundary of the plaint schedule property, the measurement was started from the south western corner of the plaint schedule property and that from the south western corner ## **R.S.A. Nos. 1211 & 1263 of 2012** **-9-** 50 links of land was measured towards east and from there 71 links were measured towards north and from that point 49 links were measured towards west. From that point 8 links were measured towards south and 6 links were measured towards west and from that point 75 links were measured towards south, which was to the starting point. On the south eastern corner a stone was laid and north eastern corner was also marked showing the eastern boundary of the property shown in the schedule to the plaint in O.S. No. 267/2006, which is the suit filed by the respondent. 13. As has been stated earlier, Surendran - the appellant's father was in possession of the property from 1981 to 1998 till Surendran assigned that property along with the building situated thereon to Nagamani. It was during that time the Canal was widened and so naturally a ## **R.S.A. Nos. 1211 & 1263 of 2012** **-10-** small portion of the land must have been given by the appellant's father for the purpose of widening the Canal. The house and other constructions were made by him while the property was in his possession. He assigned the property to Nagamani. Nagamani was in possession of that western portion of the property till it was assigned to the respondent – Usha Rani. Nagamani's right over the property as on the date, when she assigned a portion of the property to the appellant was not in dispute. The courts below found that the trespass alleged by the appellant is not true. The boundary fixed, in respect of the property claimed by the respondent in the suit filed by her as demarcated in Ext.C1(a) plan, does not suffer from any legal infirmity. 14. The existence of a substantial question of law is a _sine qua non_ for the exercise of jurisdiction under the provisions of section 100 of C.P.C. Here, the findings of the ## **R.S.A. Nos. 1211 & 1263 of 2012** **-11-** courts below are not seen vitiated by non consideration of relevant evidence or because of erroneous approach to the matter nor are the findings of the courts below perverse. 15. The learned counsel for the appellant has relied upon the decision of the Supreme Court in **Union of India v. Ibrahim Uddin and Another – 2012 KHC 4379** in support of his submission that as the respondent did not, in her suit, seek declaration of title and recovery of possession, the suit is hit by section 34 of the Specific Relief Act. The contention that the plaintiff was out of possession of a portion of the property was found to be untrue by the courts below. As such, the courts below were justified in granting a decree for fixation of boundary and injunction, since there is no evidence to show that the respondent who was the plaintiff in O.S. No.267/2006 was out of possession so as to deny the relief of injunction sought for in her suit. ## **R.S.A. Nos. 1211 & 1263 of 2012** **-12-** 16. In view of what is stated above, the prayer for injunction sought for by the appellant was rightly turned down whereas the prayer for fixation of boundary and for injunction sought for by the respondent was rightly upheld by the appellate court. No substantial question of law is involved in this case. The inevitable sequel must follow. In the result these two Regular Second Appeals are dismissed in limine. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj