Pushpa @ Pushpavathi Chandran v. P.K. Pradeep and N.K. Jayasree

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 30TH DAY OF APRIL 2024 / 10TH VAISAKHA, 1946** **RSA NO. 1189 OF 2014** **AGAINST THE DECREE AND JUDGMENT DATED 26.09.2014 IN AS NO.44 OF 2013 OF SUBORDINATE JUDGE, VADAKARA AGAISNT THE JUDGMENT AND DECREE DATED 31.08.2013 IN OS NO.184 OF 2011 OF MUNSIFF COURT, VADAKARA** ## **APPELLANT/RESPONDENT/DEFENDANT:** **PUSHPA @ PUSHPAVATHI CHANDRAN AGED 56 YEARS, D/O.CHATHU,** **PULIYULLA KANDY (H), ADAKKATHERU,VADAKARA, VADAKARA AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS.SRI.P.CHANDRASEKHAR SRI.B.PRASANTH SRI.SOORAJ T.ELENJICKAL SRI.T.S.SARATH, SMT.UMA** ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** **1 P.K.PRADEEP AGED 64 YEARS, S/O.UTHAMAN,** **PENSIONER,PUTHALATH KOROTH (H), NARAYANA NAGARAM, NEAR MANIKOTH TEMPLE, VADAKARA AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN 673101.** **2 N.K.JAYASREE AGED 46 YEARS, D/O.SANKARAN,** **PUTHALATH KOROTH (H), NARAYANA NAGARAM,NEAR MANIKOTH TEMPLE, VADAKARA AMSOM DESOM,VADAKARA TALUK, KOZHIKODE DISTRICT, PIN 673101.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON** **18.12.2023, THE COURT ON 30.04.2024 DELIVERED THE FOLLOWING:** R.S.A No.1189 of 2014 -2- ## **T.R.RAVI, J.** **---------------------------------------R.S.A No.1189 of 2014 -------------------------------------------** **Dated this the 30[th] day of April, 2024** ## **JUDGMENT** The appellant is the defendant in O.S No.184/2011 of Munsiff Court, Vadakara, and the respondent in A.S.No.44/2013 of Sub Court, Vadakara. Respondents are the plaintiffs in the suit. The suit was one for injunction, both prohibitory and mandatory. The suit was dismissed by the trial Court and the judgment of the trial court has been reversed by the First Appellate Court. The parties are referred to as per their status in the suit. 2. The case of the plaintiffs briefly is as follows: The dispute is regarding an encroachment into plaint B Schedule property. Plaint A schedule property is comprised of three items of properties purchased by the 1st plaintiff as per registered sale deed on 28.5.1996. The first plaintiff constructed a house in plaint A schedule item 1. Item Nos.2 and 3 of plaint A schedule are in possession of the plaintiffs as an access to Item No.1 plaint schedule property. Plaint B R.S.A No.1189 of 2014 -3- schedule property is a property purchased by the second plaintiff as per registered deed No.2594/1996, SRO Vatakara for the purpose of getting road access to plaint A schedule property. The plaintiff is using the property as access. The defendant is residing in Vatakara. The property on the southern side of plaint B schedule is in the possession of the defendant. The plaintiffs had approached the civil court by filing O.S.No.10/2005, where there was an earlier attempt by Chandri and 6 others and a decree of permanent prohibitory injunction was in force. The 2[nd] plaintiff had filed O.S.No.94 of 2006 seeking a decree of mandatory injunction against the defendant with respect to encroachment into plaint B schedule property, but she could not proceed with the suit as she was inflicted by cancer. The defendant and about 20 persons again encroached into plaint B schedule and started construction of a boundary wall obstructing access to plaint A schedule on 12.11.2011 and the plaintiffs had filed a complaint before the Vatakara police and the defendant and her men withdrew from the attempt. Despite the caution of the police officers, the defendant constructed the boundary wall on 13.11.2011. The suit is filed in the above circumstances, seeking a decree of mandatory injunction to remove the boundary wall and prohibitory injunction restraining the defendant and her men from trespassing R.S.A No.1189 of 2014 -4- into Plaint B schedule property, constructing any boundary wall, or committing waste in Plaint B schedule. 3. The defendant filed a written statement disputing the identity of plaint ‘A’ & ‘B’ scheduled properties and the plaintiffs’ title over the properties. It is contended that the plaintiffs are not in possession or paying tax with respect to the above properties. The contention that plaint B schedule and plaint items 2 and 3 are used as access to the plaintiffs’ house is denied. It is stated that the wall was constructed on the defendant’s property and it was in existence even at the time of filing of O.S.No.94/06. It is contended that the wall was removed by the plaintiffs in the absence of the defendant and the plaintiffs started using the portion as road. The defendant would submit that the decree obtained in O.S.No.10/2005 is a collusive one and hence it is not binding upon her. According to the defendant, the plaint B schedule property does not exist. It is contended that on the northern side of the defendant’s property, there is a canal flowing in the east-west direction, that the northern side of the plaintiffs’ property is a pathway, that the eastern side is in a higher level, and that the water flowing from the pathway on the north of the plaintiffs’ property passes through the canal on the northern side of the defendant’s property. It is stated that the canal was filled up in 2004 R.S.A No.1189 of 2014 -5- and altered into a way by the public and the defendant and that one Chandri was using the way as access to their property. It is stated that the plaintiffs’ attempt is to acquire a public way and documents 1103 and 2594 of 1996 have been created for the purpose. The defendant claimed possession of the property based on a sale deed dated 2.8.1957. It is also stated that O.S.No.94 of 2006 was not pursued since the plaintiffs could not identify the property. 4. Before the trial court Exts.A1 to A14 were marked on the side of the plaintiffs and Exts.B1 to B7 were marked on the side of the defendant. Both the parties had not adduced any oral evidence. The Advocate Commissioner was examined as CW1 and two sets of reports and plans submitted by the Com0missioner were marked as Ext.C1, C1(a), C2, and C2(a). 5. The trial court held that the plaintiffs failed to prove their title, possession, and the identity of the plaint B schedule property. It was held that the findings in the commission report that a wall is seen recently constructed is not sufficient to prove the cause of action pleaded by the plaintiff. However, the First Appellate Court has in A.S No.44/2013 filed by the plaintiffs, reversed the judgment of the trial R.S.A No.1189 of 2014 -6- court and decreed the suit. The second appeal is filed against the judgment of the First Appellate Court. 6. The second appeal was admitted and notice was issued on the substantial questions of law formulated in the appeal. There are 5 questions formulated in the memorandum of appeal. The first and second questions are regarding the findings of the First Appellate Court about the identity of the plaint B Schedule property. The third question is whether the findings of the trial court have been reversed without giving reasons. The fourth question is as to the correctness in decreeing the suit when the plaintiffs did not enter the witness box and prove their case and the fifth question posed is as to the perversity of the findings regarding the alleged cause of action, which according to the defendant is without any evidence on record. 7. Heard Sri P.Chandrasekhar, on behalf of the appellant and Sri B.Krishnan, on behalf of the respondents. 8. The main argument of the counsel for the appellant is that there was no reason for reversing the finding of the trial court in paragraph 11 of the judgment that plaint B Schedule property had not been identified. It is pointed out that western boundary of Item Nos.2 and 3 in Ext.A1 title deed of the plaintiff is shown as a public R.S.A No.1189 of 2014 -7- road and in Ext.C2(a) plan the western boundary of item Nos.2 and 3 is shown as plaint B schedule property. The counsel also referred in extenso to Exts.C2 and C2(a) and the deposition of the Advocate Commissioner, during his Chief examination as CW1 to submit that the western and eastern boundaries of the property had not been fixed. It is hence submitted that without proper identification and oral evidence regarding the cause of action, the suit could not have been decreed. The counsel for the respondents on the other hand points out that the deposition of CW1 has to be read along with his crossexamination, which would place the facts in the correct perspective. It is pointed out that the trial court has in paragraph 11 arrived at the conclusion regarding the identity of the property in a very casual manner by referring only to the western boundary of the plaint item Nos.2 and 3 and finding that the plaintiff could not show that the boundary description in Ext.A1 was a mistake and that there is no explanation as to how the second plaintiff could purchase public road. It is pointed out that the canal on the northern side of the defendant’s property had admittedly filled up in 2004. It is also pointed out that the defendant had not taken any steps to prove her contention that the construction was on her property and that the decree in O.S.No.10 of 2005 was a collusive one. R.S.A No.1189 of 2014 -8- 9. I have considered the contentions of the counsel on either side and the pleadings and evidence in the case. 10. This is a case where the findings of the trial court that plaint B schedule property has not been identified and the plaintiffs have failed to prove title over the property has been reversed by the First Appellate Court. The scope and limit of interfering with the finding of fact in a case under Section 100 of the Code of Civil Procedure is well settled. In **Sheel Chand v. Prakash Chand [(1998) 6 SCC 683]** , the Hon’ble Supreme Court held that there can be no interference with the findings of fact recorded by the two courts below, if the same was based on proper appreciation of evidence and the material on the record, and there was no perversity, illegality or irregularity in those findings. The above judgment has been later relied on by the Hon’ble Supreme Court in its judgment in **Rattan Singh and others v. Nirmal Gill & Ors. [(2021) 15 SCC 300]** . 11. In view of the above legal position, unless it can be found that the findings of the First Appellate Court are based on no evidence at all or that there was perversity in the appreciation of the evidence by the First Appellate Court, or that the findings are otherwise illegal R.S.A No.1189 of 2014 -9- or irregular, this Court cannot interfere with the judgment in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure. 12. Keeping the legal position in mind, I shall consider the issues involved in this appeal. The 1[st] plaintiff purchased all the 3 items of the plaint A schedule property together as per Ext.A1 registered sale deed No.1103 of 1996 dated 20.5.1996. It is in evidence that the original of the sale deed was kept with the State Bank of Travancore, Vatakara Branch, against a housing loan availed by the 1[st] plaintiff. A few months later, the 2[nd] plaintiff purchased Plaint B Schedule property as per Ext.A2 registered sale deed No.2594 of 1996 dated 2.12.1996. Exts.A3 and A10 are the receipts showing payment of basic tax for the plaint B schedule property. Ext.A5 series are photographs of the well laid out way which also shows the foundation for a wall put up with granite stones encroaching into the way. Exts.A8 and A9 are the location sketch and its details issued by the Village officer, Vatakara, regarding the property covered by Ext.A2 document. Ext.A13 is the building permit issued by the Vatakara Municipality on 16.10.2001 for the construction of a building in Plaint A schedule item 1. The prior title deed of Plaint B schedule property was produced by the defendant herself as Ext.B6. All four boundaries are stated as Manikoththazha R.S.A No.1189 of 2014 -10- paddy field. It is an admitted fact by both the parties that there existed a canal and it was filled up, reclaimed and converted into road in the year 2004. The contention of the defendant in the written statement that there are no properties as shown in Exts.A1 and A2 title deeds and that the documents were created fraudulently has to be appreciated in the light of the above said evidence. When there are two registered documents in favour of the plaintiffs, covering the plaint A and B schedule properties, the effect of the said documents cannot be undone by a mere statement in the written statement. The defendant has not let in any evidence to prove her case regarding non-existence of the plaint schedule properties. It is also to be borne in mind that the registered documents are of 1996 and a building had been constructed on the basis of the title obtained as per Ext.A1, ten years prior to the present suit. 13. Let us now consider the manner in which the evidence on record was considered by the trial Court. The consideration is in paragraphs 11 to 15 of the judgment of the trial Court. In paragraph 11 the court finds that the western boundary of items 2 and 3 of plaint A schedule property is shown as a public road and the Ext.C2(a) shows the western boundary as plaint B schedule property. In paragraph 12 the court says that Ext.A2 does not show that it has R.S.A No.1189 of 2014 -11- been purchased for the purpose of access to plaint A schedule property. None of the above reasons are sufficient to discredit or dislodge two registered documents of title followed by payment of basic tax for the property by the plaintiffs. In paragraph 13 the trial court considers Ext.B2 certified copy of plaint in O.S.No.94 of 2006 and it is found that there is no contention regarding construction of boundary wall by the defendant. The other aspect stated is that CW1 Advocate Commissioner has stated that plaint B schedule was identified on the basis of a mud wall situated in a third party's property. The trial court has, without considering the tax receipts, the photographs clearly showing the existence of a way, the building permit issued to the plaintiffs for construction of a building in plaint A schedule item 1, the judgment in O.S.No.10 of 2005 which is a representative suit, in which a decree of injunction was granted with regard to the interference with the way, Exts.C2 and C2(a) reports which clearly identifies the properties and the absence of any challenge to Exts.A1 and A2 title deeds in a manner known to law, has arrived at a finding that the plaintiffs could not identify plaint B schedule property and their possession of plaint B schedule property. The finding of the trial court is nothing but perverse and even without any reference to the evidence on record. In the entire judgment of R.S.A No.1189 of 2014 -12- the trial court, there is no reference to the report of the Advocate Commissioner and the plan submitted by the Commissioner. 14. The First Appellate Court found that Ext.A1 title deed of the 1[st] plaintiff regarding plaint A schedule propertiy is not under challenge and there is nothing on record to show that the document is fabricated, as was contended by the defendant. The court noted that the defendant was not claiming any right over the said properties and that mutation has been effected after the purchase of the properties. The court also considered the payment of tax, issuance of building permit, construction of house in the property and the issuance of the location sketch and held that the existence of the property stands proved. The First Appellate Court considered the prior litigation when there was attempt to encroach in plaint items 2 and 3 on the ground that it is a public way, which ended in a decree in favour of the plaintiffs. The appeal filed against the decree was dismissed by the First appellate Court as evidenced by Exts.A11 and A12 certified copies of the judgment and decree of the Appellate Court. The Court hence found that the properties are in existence and clearly identifiable. Regarding the contention of the defendant that the above judgment was obtained by collusion, the court found that the defendant has not adduced any evidence to prove the contention. R.S.A No.1189 of 2014 -13- 15. On the contentions regarding plaint B schedule property, the First Appellate Court traced the plaint B schedule property from the prior document Ext.B6 produced by the defendant to Ext.A2 document of title of the 2[nd] plaintiff and found that the description of the property in the two documents tally when the measurements are converted into metres. The court further found that the description of southern and western boundary of Plaint B schedule in Ext.A2 document as canal and the later description given as pathway in the plaint in O.S.No.94/2006 are not contradictory to each other as contended by the defendant. It was noted that different descriptions at different intervals refers to the same location subject to the changes that were brought by passage of time between 1957 and 1996, and 2004 later on. Appellate Court found that the plaintiffs have succeeded in proving the title over the Plaint A & B schedule item properties and in identitying of the properties. 16. Having gone through the evidence on record and the reasoning of the First Appellate Court to reverse the findings of the trial Court, I find that the First Appellate Court has considered the entire evidence on record from the correct perspective and has arrived at the correct conclusions. The First Appellate Court has correctly set aside the judgment and decree of the trial Court. The R.S.A No.1189 of 2014 -14- reports and plans submitted by the Advocate Commissioner will reveal that the foundation constructed by the defendant encroached into the public way as well as Plaint B schedule property. The defendant had not produced any evidence to show that the construction of the foundation is within her properties. There is no perversity in the judgment of the First Appellate Court and the appreciation of evidence is also legally correct. The First Appellate Court has only corrected a perversity in the judgment of the trial court. The substantial questions of law raised are answered as above. The second appeal fails and is dismissed. Sd/- **==> picture [320 x 40] intentionally omitted <==** **T.R. RAVI JUDGE** dsn