Regular Second Appeal Nos. 383 of 2008 and 415 of 2008

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** **RSA NO. 383 OF 2008** **AGAINST THE DECREE AND JUDGMENT IN AS 22/2005 OF IInd ADDITIONAL** **SUB COURT, KOZHIKODE** **AGAINST THE DECREE AND JUDGMENT IN OS 66/2002 OF IST ADDITIONAL** ## **MUNSIFF'S COURT ,KOZHIKODE** ## **APPELLANTS/APPELLANTS/DEFENDANT NOS.2 TO 9:** 1 JAYAPRAKASAN, AGED 60 YEARS,S/O. GOPALAN MASTER. "JIS JIL", ELATHUR P.O, ELATHUR, KOZHIKODE TALUK. 2 SREEJAYAN, AGED 57 YEARS, S/O.GOPALAN MASTER, "JIJINA",CHELANNUR P.O,CHELANNUR,KOZHIKODE TALUK. 3 RAMESH, AGED 50 YEARS, S/O.GOPALAN MASTER, "SREEKRISHNAPURAM",THALAKKULATHUR P.O, THALAKKULATHUR,KOZHIKODE TALUK. 4 PRAMOD, AGED 45 YEARS, S/O.GOPALAN MASTER, EMPLOYED IN MATHRUBHUMI,KOTTAYAM,KOTTAYAM DISTRICT 5 RAJEEVAN, AGED 39 YERS, S/O.GOPALAN MASTER, "PUTHANKALATHIL",THALAKKULATHUR P.O, THALAKKULATHUR,KOZHIKODE TALUK. 6 MEERA, AGED 56 YEARS, D/O.GOPALAN MASTER, "KALATHINKAL HOUSE",PERUVATHUR P.O,KOYILANDY. 7 REETHA,AGED 46 YEARS, D/O.GOPALAN MASTER, "KAKKADATH ITHAM VEETTIL", FEROKE P.O, CHERUVANNUR,KOZHIKODE TALUK. 8 GIRIJA, AGED 45 YEARS, D/O.GOPALAN MASTER, "KOMALA SADAN",CHUNGAM P.O,WEST HILL, KOZHIKODE TALUK. BY ADV SRI.K.R.VINOD ## **RESPONDENT/PLAINTIFF:** CHARAPARAMBIL SAKKENA, W/O.A.T.MOIDEENKUNHI,THALAKKULATHUR,KOZHIKODE TALUK. BY ADVS. SRI.NIRMAL. S THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2022, ALONG WITH RSA.415/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A Nos.383 & 415 of 2008 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 RSA NO. 415 OF 2008** **AGAINST THE DECREE AND JUDGMENT IN AS 21/2005 OF ADDITIONAL SUB COURT, KOZHIKODE AGAINST THE DECREE AND JUDGMENT IN OS 152/2003 OF IST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE** ## **APPELLANTS/APPELLANTS/DEFENDANT NOS.2 TO 9:** 1 JAYAPRAKASAN, AGED 60 YEARS, S/O. GOPALAN MASTER, "JIS JIL",ELATHUR P.O, ELATHUR, KOZHIKODE TALUK. 2 SREEJAYAN, AGED 57 YEARS, S/O.GOPALAN MASTER, "JIJINA", CHELANNUR P.O., CHELANNUR, KOZHIKODE TALUK. 3 REMESH, AGED 50 YEARS, S/O.GOPALAN MASTER, "SREEKRISHNAPURAM", THALAKKULATHUR P.O., THALAKKULATHUR, KOZHIKODE TALUK. 4 PRAMOD, AGED 45 YEARS, S/O.GOPALAN MASTER EMPLOYED IN MATHRUBHUMI, KOTTAYAM, KOTTAYAM DIST. 5 RAJEEVAN, AGED 39 YEARS, S/O.GOPALAN MASTER, "PUTHANKALATHIL", THALAKKULATHUR P.O., THALAKKULATHUR, KOZHIKODE TALUK. 6 MEERA, AGED 56 YEARS, D/O.GOPALAN MASTER "KALATHINKAL HOUSE", PERUVATHUR P.O., KOYILANDY. 7 REETHA, AGED 46 YEARS, D/O.GOPALAN MASTER, "KAKKADATH ITHAM VEETTIL", FEROKE P.O.,, CHERUVANNUR, KOZHIKODE TALUK. 8 GIRIJA, AGED 45 YEARS,D/O.GOPALAN MASTER, "KOMALA SADAN", CHUNGAM P.O, WEST HILL,, KOZHIKODE TALUK. R.S.A Nos.383 & 415 of 2008 3 BY ADV SRI.K.R.VINOD ## **RESPONDENT/PLAINTIFF AND 1ST DEFENDANT:** 1 CHARAPARAMBIL SAKKENA, W/O.A.T.MOIDEENKUNHI, THALAKKULATHUR, KOZHIKODE TALUK. 2 THALAKKULATHUR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, THALAKULATHUR, KOZHIKODE TALUK. BY ADVS. NIRMAL.S -R1 VEENA HARI -R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2022, ALONG WITH RSA.383/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A Nos.383 & 415 of 2008 4 ## K.BABU, J . -------------------------------------- R.S.A Nos.383 & 415 of 2008 --------------------------------------Dated this the 8[th] day of March, 2022 ## JUDGMENT These two Regular Second Appeals arise from the common judgment and decree dated 03.08.2007 in A.S.Nos.21/2005 and 22/2005 on the files of the Subordinate Judge's Court, Kozhikode. The above appeals arose from the common judgment dated 29.11.2004 in O.S.Nos.66/2002 and 152/2003. Defendants 1 to 8 in O.S.No.66/2002 are the appellants in R.S.A.No.383/2008. Defendants 2 to 9 in O.S.No.152/2003 are the appellants in R.S.A No.415/2008. 2. The plaintiff is the respondent in R.S.A.No.383/2008. The plaintiff and defendant No.1 (the Thalakkulathur Grama Panchayat) in O.S.No.152/2003 are the respondents in R.S.A.No.415/2008. 3. Material facts relevant for the adjudication of these appeals are as follows: 3.1. The plaintiff instituted O.S.No.66/2002 against the defendants for a permanent prohibitory injunction in respect of the plaint schedule property. The plaintiff is the owner in possession of R.S.A Nos.383 & 415 of 2008 5 the plaint schedule property comprising four taks. Tak No.4 extends upto the eastern 'idavazhi' (lane). This strip of land is a 2.74 metres (9 feet) wide way having an approximate length of 31 metres. The defendants in O.S.No.66/2002 are the owners of the property on the immediate south of Tak No.4 (B schedule property in O.S.No.152/2003). The defendants attempted to trespass upon Tak No.4. They intended to reduce the width of it. The plaintiff resisted it. The plaintiff instituted the suit for injunction simpliciter. 3.2. After the institution of the suit, the defendants trespassed into Tak No.4 and constructed a new granite bund reducing the width of it. The acts of the defendants were in violation of the interim orders then in force. The plaint was amended to incorporate the relief of mandatory injunction to remove the wall put up by the defendants. 3.3. When the defendants approached the local Grama Panchayat for permit and licence to construct a building encroaching upon Tak No.4, the plaintiff instituted O.S.No.152/2003 to restrain the Panchayat from issuing permit and licence to the defendants to construct any structures encroaching upon Tak No.4. R.S.A Nos.383 & 415 of 2008 6 4. Defendants resisted the suit contending that the description of the plaint schedule property is erroneous. The claim of the plaintiff over Tak No.4 is without any bona fides. The defendants have valid title deed in respect of the property in their possession. The property of the defendants has well-defined boundaries on all sides. There is only a 'nadavarmaba' on the north of the defendants' property, which has a width of only 4 feet. The plaintiff and the predecessors have been enjoying the abovesaid 4 feet wide 'nadavarmba'. The description shown in the title deed in respect of Tak No.4 is fraudulent. The defendants never committed any mischief. They never invaded into the property of the plaintiff. They only restored the boundary wall demolished by the plaintiff. The proposed construction of the defendants in their property is not in violation of any of the statutory provisions. 5. Both the suits were jointly tried. The plaintiff gave evidence as PW1. Exhibits A1 to A7 series were marked on the side of the plaintiff. DWs 1 and 2 were examined from the side of the defendants. Exhibits B1 to B14 were marked on their side. Exhibits C1 to C5 series were marked as Court Exhibits. R.S.A Nos.383 & 415 of 2008 7 6. The Trial Court decreed both the suits. The defendants challenged the decree and judgment filing A.S.Nos.21/2005 & 22/2005. The First Appellate Court confirmed the decree and judgment of the Trial Court. 7. On 14.07.2009, this Court admitted these Regular Second Appeals on the following substantial questions of law: “(i) Whether a decree of mandatory or prohibitory injunction can be granted in respect of a property wherein its identification is in serious dispute without measuring and identifying the same by survey records and title deeds. (ii) Whether a decree of injunction can be granted to a person who came before the equity court with most unclean hands and by suppressing the material facts. (iii) Whether the court is justified in granting a decree of injunction in respect of property, over which the plaintiff claims title, which actually situates in survey number different from the survey number shown in the title deed and the actual boundaries of which are not tallying with the boundaries shown in the title deed. (iv) Whether a civil court can grant a decree of mandatory injunction, without obtaining a R.S.A Nos.383 & 415 of 2008 8 measurement sketch of the portion of the property in relation to which the relief is sought or without its identification. - (v) Whether a civil court can restrain a statutory authority from issuing the license or plan in respect of a building in the absolute ownership and possession of the applicant. ” 8. Heard Sri.K.R.Vinod, the learned counsel appearing for the appellants/defendants, Sri.Nirmal.S, the learned counsel appearing for respondent No.1 in R.S.A.No.415/2008/plaintiff and Sri.Anoop, the learned counsel appearing for respondent No.2 in R.S.A No.415/2008. 9. The learned counsel for the appellants/defendants contended that the plaintiff failed to establish the identity of Tak No.4 of the plaint schedule property. It is further submitted that without a measurement sketch there could not be any identification of the property in dispute. 10. Per contra, the learned counsel for the respondent/plaintiff contended that the properties are well identifiable. The Commissioner visited the property and prepared Exts.C1 to C5 series, specifically identifying the property. R.S.A Nos.383 & 415 of 2008 9 11. The learned counsel further contended that the Commissioner identified the property based on physical features found on the land. 12. The plaintiff claimed title and possession over the plaint schedule property as per Exts.A1 and A2 title deeds. The prior title deed of Exts.A1 and A2 is Ext.A4, a partition deed of the year 1965. According to the plaintiff, Tak No.4 in the plaint schedule property is a 2.74 metres (9 feet) wide way that touches the eastern 'idavazhi' (lane). The plaintiff is the exclusive owner in possession of that way. The plaintiff pleaded that after the institution of the suit, the defendants trespassed upon Tak No.4 and reduced the width of the same and constructed a granite wall encroaching upon it. The plaintiff specifically pleaded that the defendants reduced the width by 2.6 feet. 13. The defendants' challenge is that they have not committed any mischief as pleaded. The way claimed by the plaintiff had a width of only 4 feet. It was only a 'nadavarmba'. The defendants, relying on Ext.B1 title deed in respect of their property, contended that the disputed way is a 'nadavaramba'. Exts.A1 and A2, the title R.S.A Nos.383 & 415 of 2008 10 deeds in favour of the plaintiff, specifically describe the disputed property (Tak 4, the way) as a strip of land having a width of 2.74 metres (9 feet). The immediate prior deed of Exts.A1 and A2, the partition deed of the year 1965 (Ext.A4), also contains the recital regarding the existence of 2.74 metres (9 feet) wide way. In Ext.B1 document relied on by the defendants, there is a mention of 'nadavarmba' on the north of their property. But, there is no mention of the width of that strip of land. 14. The Commissioner appointed by the Court below conducted a local inspection on 25.01.2002, that is, the very next day after the institution of O.S.No.66/2002. The Commissioner identified the 2.74 metres (9 feet) wide way and reported in Ext.C1. The Commissioner identified the disputed strip of land (Tak No.4) in relation to the other items of the plaint schedule properties. The Commissioner has specifically noted the existence of bunds/revetments along the northern and southern boundaries of Tak No.4. On the subsequent inspection, the Commissioner found that the location of the southern boundary wall of Tak No.4 had been disturbed and shifted towards the north, thus reducing the R.S.A Nos.383 & 415 of 2008 11 width of the way as it existed on the date of first inspection. The Commissioner noted that the boundary demarcations were originally found in the form of a line of laterite stones paved along the northern side of Tak No.4 and a granite bund in level with the lie of the way along its southern boundary. 15. The learned counsel for the appellants/defendants submitted that the Commissioner identified the property without the assistance of the Surveyor. The identification made by him cannot be accepted. The learned counsel also contended that Tak No.4 is actually in Survey No.200/2, whereas in the plaint description, the survey number is noted as 200/1. Relying on these discrepancies, the learned counsel contended that the property could not be identified and the Courts below lost sight of the same while accepting the identification made by the Advocate Commissioner. 16. The learned counsel for the respondent/plaintiff, relying on Chandrakumar v. Narayanan Bahuleyan and others (MANU/KE/1944/2011), contended that when the factors like boundaries, extent, survey numbers and lekhoms harmonise, there is little difficulty to identify the property in dispute. But when some R.S.A Nos.383 & 415 of 2008 12 of them are in conflict with the rest the boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. 17. There is no inflexible rule that identification of a property can only be done by way of a survey plan. If the physical features available on the field are sufficient to identify a property, there is no need for the insistence of a survey plan for identification. 18. This Court in Madhavan v. Narayanankutti and others (MANU/KE/4673/2019) = [2019 (4) KHC 854] held that in a suit for perpetual and mandatory injunction based on possession, it is necessary for the plaintiff to prove that property has well defined physical boundaries and thus it can be identified from the adjoining properties. It was held that the property has to be identified not on the basis of the survey plan because the survey line is imaginary and people identify and enjoy properties not on the basis of imaginary lines but on physical boundaries like wall, fence, row of trees, difference in level, boundary stones etc. If there is no such line separating the properties of the plaintiff and the defendant, the proper remedy is to file a suit for fixation of the boundary. 19. In the case on hand, the Commissioner, who visited the R.S.A Nos.383 & 415 of 2008 13 property initially on 25.01.2002, specifically identified the disputed strip of land based on the physical features available. The commissioner had noted bunds/revetments on the north and south of the disputed land. Subsequently, when the plaintiff complained of encroachment on the part of the defendants in violation of the temporary prohibitory injunction, the same Commissioner again visited the property and identified the changes that occurred. The Commissioner found that a new granite boundary was formed reducing the width of the way, identified earlier, by 2.6 feet. The encroached portion is also identifiable from the report of the Commissioner. 20. It has come out in evidence that during the pendency of the suit, the defendants trespassed upon Tak No.4 and reduced the width of the way. The Trial Court granted a mandatory injunction to restore the disputed property (Tak No.4) in its original position. 21. The learned counsel for the appellants/defendants contended that since the plaintiff had not prayed for the recovery of possession in respect of the alleged encroached portion, she is not entitled to the relief of mandatory injunction. 14 R.S.A Nos.383 & 415 of 2008 22. Both the Trial Court as well as the First Appellate Court accepted the reports of the Commissioner in recording the finding that the plaintiff could establish the identity of the disputed property. The discrepancy in survey number projected by the appellants/defendants would in no way affect the process of identification of the property by the Commissioner. The Trial Court meticulously analysed the pleadings and evidence and recorded the finding that the disputed land is well-identifiable. The First Appellate Court re-appreciated the entire materials and confirmed the findings of the Trial Court. This Court finds no reason to interfere with the findings of the Courts below regarding the identification of the disputed property. 23. As stated above, the encroachment occurred during the course of the proceedings. The defendants can only be treated as trespassers. In such a situation, the trespassers/defendants have no possession of any portion of Tak No.4. Therefore, the decree directing the restoration of the property in its original position by way of mandatory injunction is well justified. The substantial questions of law, therefore, are answered against the appellants. R.S.A Nos.383 & 415 of 2008 15 The Regular Second Appeals are dismissed. The parties are directed to bear their respective costs. Pending Interlocutory Applications, if any, stand closed. Sd/K.BABU, JUDGE KAS