Purushan s/o Kunjan v. Mankamma d/o Kutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939** ## **RSA.No. 1147 of 2003** **-------------------------** **AGAINST THE JUDGMENT IN AS 94/1999 of SUB COURT, CHERTHALA DATED 29-07-2003** **AGAINST THE JUDGMENT IN OS 422/1992 of ADDL.MUNSIFF COURT,CHERTHALA DATED 13-08-1999** **APPELLANT(S):** **-------------------** **PURUSHAN, S/O KUNJAN, RESIDING AT KAKKATHURUTHEL VELIKKAKATHU KALATHIL, ERAMALLOOR MURI, EZHUPUNNA VILLAGE.** **BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.S.MANU** **RESPONDENT(S):** **---------------------** **MANKAMMA, D/O KUTTY, KAKKATHURUTHEL KALATHIL, ERAMALLOOR MURI, EZHUPUNNA VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT.** ## **R BY ADV. SRI.DEEPU THANKAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **rmm** ## **K.RAMAKRISHNAN, J. -------------------------------** ## **R.S.A.No.1147 of 2003** ## **-----------------------------Dated this the 25[th] day of May, 2017** ## **J U D G M E N T** **------------------** The defendant in O.S.No.422/1992 on the file of the Additional Munsiff's Court, Cherthala is the appellant herein. The suit was filed by the plaintiff for declaration of title over plaint schedule property and for injunction and also for directing the defendant to remove the encroachment made and restore the same to the original position and also for damages to the tune of Rs.1000/-. The case of the plaintiff in the plaint was that the plaint schedule property was purchased as per Ext.A1 document (sale deed No.1137/91) dated 8.5.1991 by the appellant herein and she has in possession and enjoyment of the same. While so on 16.05.1992, the defendant attempted to trespass into the plaint schedule property and dig certain pits (22 in number) for the purpose of planting R.S.A No. 1147 of 2003 2 coconut saplings. The plaintiff immediately filed a complaint before the police and on the intervention of the police, the attempt of the defendant to plant saplings could not be materialised and he had agreed to restore the plaint schedule property to the original position. But he did not restore the same. Aggrieved by the same, plaintiff filed the above suit. 2. The defendant entered appearance and filed written statement admitting the fact that the plaintiff is having property on the northern side of his property and property on the southern side belongs to him and in order to amicably settle the dispute between the parties and for peaceful possession of the respective properties, he had executed Ext.A1 document assigning 10 cents of land in favour of the plaintiff. According to the defendant, those two properties were separated by poles and the entire pits for planting coconut saplings were dug within his property and he had not encroached into the property of the plaintiff. So according to him, the plaintiff is not R.S.A No. 1147 of 2003 3 entitled to get any reliefs and he prayed for dismissal of the suit. 3. On the basis of pleadings, the court below framed the following issues: - “ _1. Whether the declaration prayed for is allowable?_ _2. Whether the plaintiff is entitled to get an injunction as prayed for ?_ _3. Relief and Costs._ _4. Whether the defendant is entitled to get any amount as compensation from the plaintiff ?”_ 4. No oral evidence was adduced on the side of the plaintiff and Exts.A1 and A2 were marked on her side. A Commission was taken out with the help of a Taluk Surveyor and he was examined as DW1 and Exts.C1 and C1(a) were marked on the side of the defendant. 5. After considering the evidence on record, the trial court found that the yellow shaded portion in Ext.C1(a) is the disputed plaint schedule property and certain pits were dug within that area and thereby granted a decree for declaration of title over the plaint R.S.A No. 1147 of 2003 4 schedule property in favour of the plaintiff and also granted injunction and directed the appellant herein to remove the pits that were dug within the plaint schedule property and in case he did not do the same, permitted the plaintiff to remove the same through court and recover expenses for the same from the defendant. 6. Aggrieved by the same, though the defendant filed A.S.No.94/1999 before Sub Court, Cherthala, it was dismissed by the appellate court confirming the decree and judgment passed by the court below. Aggrieved by the same, the present second appeal has been preferred. 7. This Court while admitting the appeal only accepted the first question of law raised in the appeal memorandum and admitted the case for that purpose, framed the following substantial question of law for consideration: “whether the trial court and the lower appellate court are justified in making a decree for excess of such pleadings in the plaint and especially in the absence of plaintiff getting examined before the court.” R.S.A No. 1147 of 2003 5 8. Heard Miss Meenakshi.R representing Sri.K.Gopalakrishna Kurup, Senior Counsel appearing for the appellant and Sri.Deepu Thankan counsel appearing for the respondent. 9. Learned counsel for the appellant argued that the court below had granted excess relief which was not sought for in the plaint. Further, the plaintiff did not go to the witness box to prove the alleged trespass and prove title over the property. When there is dispute regarding the boundary, without fixation of boundary, the court below should not have decreed the suit or granted declaration. Further, no opportunity was given to the appellant to adduce evidence and the court below ought to have given an opportunity to examine the defendant to prove his case and he prayed for remand of the case for that purpose in case this Court is not inclined to allow the appeal on the basis of question of law raised by this Court. 10. On the other hand, learned counsel for the R.S.A No. 1147 of 2003 6 respondent submitted that the court below was perfectly justified in granting the relief and there is no substantial question of law arises for consideration and it is based on facts and that has been considered by the courts below and concurrently found in favour of the respondent herein and no interference is called for. 11. It is an admitted fact that Ext.A1 sale deed was executed by the defendant in favour of the plaintiff and plaintiff is paying revenue in respect of that portion evidenced by Ext.A2. The defendant is not claiming any right over the property sold by him covered by Ext.A1. But according to the defendant, he had not trespassed into any portion of the property covered by Ext.A1 and he had planted coconut saplings only within his property, which is a paddy land, which was reclined for the purpose of planting saplings. So when there is no dispute regarding the property sold and there is no dispute regarding the boundary of the property sold, there is no necessity for filing a suit for fixation of boundary as R.S.A No. 1147 of 2003 7 submitted by the learned counsel for the appellant. 12. But to ascertain the fact as to whether there was an attempted trespass in the property for which identity of the property is required, then plaintiff is entitled to take out a commission with the help of a surveyor to identify the property in respect of which declaration is sought for and also find out as to whether any encroachment has been made within that portion of the property or any attempted trespass has been made. If the defendant had planted some saplings believing that it is within his property, then there is no question of denial of title arises and then there is no necessity for recovery of possession also arises. 13. It is seen from the pleadings and the relief portion of the plaint that the plaintiff has sought for declaration, injunction as well as mandatory relief directing the defendant to remove the pits dug in the disputed property and if he is not doing the same, permitting her to do the same and recover the expenses R.S.A No. 1147 of 2003 8 from the defendant. But unfortunately in the valuation portion and also in the relief portion what was sought for is recovery of Rs.1000/- as compensation. Merely because the valuation portion was wrongly shown not in tune with the relief claimed, that will not prevent the court from granting the decree if the moulding of the decree could be possible on the basis of the pleadings. Further, the court below had not granted any compensation as claimed, but court below only granted a decree for mandatory injunction on the basis of the report of the commissioner that certain pits were dug in the plaint scheduled property. So the court fee paid for compensation can be treated as court fee paid for mandatory injunction as a reading of the plaint allegation and the relief portion will go to show that he had made a prayer for mandatory injunction and foundation has been made in the pleading for that purpose. So under such circumstances, it cannot be said that any excess relief has been granted by the courts below in favour of the plaintiff R.S.A No. 1147 of 2003 9 as claimed by the learned counsel for the appellant. 14. It is true that the plaintiff did not go to the witness box but she had taken out a commission to identify the property and the commissioner had identified the property and shaded the same in yellow colour with the help of Taluk surveyor in Ext.C1(a) plan, which shows that there is some encroachment made in the plaint schedule property. Since there is no dispute regarding the execution of the document and identity of the property as such, there is no necessity for the plaintiff to go to the witness box to prove that fact. She can rely on the commissioner's report for that purpose. Further the defendant also did not go to the witness box. Even in the written statement, his case was that he did not make any encroachment and he had dug the pits for planting saplings only within his property. So under such circumstances, non examination of the plaintiff is not fatal in this case, especially when a commissioner was examined as DW1 and the report of the commissioner and R.S.A No. 1147 of 2003 10 plan were marked at the instance of defendant himself to prove his case. 15. Though the commissioner had mentioned in his evidence that he had not specifically mentioned as item 1 and 2 as described in the document in the plan and also the survey sub divisions as mentioned in the document, but he had categorically stated that those things were mentioned in the report and he had measured the property with the help of the surveyor and also descriptions given in the document. So under such circumstances, the court below was perfectly justified in relying on Ext.C1(a) plan and coming to the conclusion that the plaint schedule property as described in yellow shaded portion in Ext.C1 belongs to the plaintiff as per Ext.A1 document and rightly declared the title over the same. Since it was found that the alleged pit was dug in the portion of the plaint schedule property, courts below have rightly granted a relief of mandatory injunction directing the defendant to remove the same within a time R.S.A No. 1147 of 2003 11 frame fixed by the courts below and if it is not done permitting the petitioner to do the same through court and recover the expenses from the defendant. So under such circumstances, courts below were perfectly justified in granting the relief and there is no substantial question of law arises for consideration, but the matter has been decided only on facts and there is no misappreciation of evidence or wrong application of law as contended by the counsel for the appellant which requires interference at the hands of this Court. There is no necessity to remand the case for the purpose of giving an opportunity to the defendant to prove his case. He had no case that he had encroached to the property. He had also no case that he had not sold the property as per Ext.A1 to the plaintiff. 16. Learned counsel for the appellant also relied on the decision reported in **Om Prakash and Others v. Ram Kumar and Others [(1991) 1 Supreme Court Cases 441]** and **Damadilal and Others v. Parashram and Others [(1976) 4 Supreme Court Cases 855].** R.S.A No. 1147 of 2003 12 There is no dispute regarding the proposition of law laid down by the Apex Court in the decision cited supra but that is not applicable to the facts of this case. So under such circumstances, this Court did not find any merit in the request made by the counsel for the appellant for remand of the case as well. So the appeal lacks merits and the same is liable to be dismissed. In the result, the appeal fails and the same is hereby dismissed. Considering the circumstances of the case, parties are directed to bear the respective cost in the appeal. Sd/- **K.RAMAKRISHNAN JUDGE** rmm/27/5/17 // True Copy // P.A. To Judge