Regular Second Appeals Nos. 220 of 2012 and 955 of 2012, High Court of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, ``` ## **`1945`** ``` RSA NO. 220 OF 2012 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 29.11.2011 IN AS NO.130 OF 2008 OF SUB COURT, THALASSERY ARISING OUT OF THE DECREE AND JUDGMENT DATED 25.03.2008 IN OS NO.376 OF 2003 OF MUNSIFF COURT, THALASSERY ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** - **`1 K.RAMESAN AGED 49 YEARS S/O.LATE RAGHAVAN, JANAKI NIVAS,DHARMADAM AMSOM, PALAYAD DESOM, PALAYAD, THALASSERY`** - **`2 K.JANAKI AGED 70 YEARS W/O.LATE RAGHAVAN,JANAKI NIVAS,DHARMADAM AMSOM, PALAYAD DESOM, PALAYAD, THALASSERY(DIED) IT IS RECORDED THAT SECOND APPELLANT IS NO MORE AND SHE HAS NO LEGAL HEIRS AS PER ORDER DATEDF 18.01.2013 I.A.NO.1/2023)`** - **`3 ALAKKADAN LAKSHMI AGED 70 YEARS D/O.MATHU, JANAKI NIVAS,DHARMADAM AMSOM, PALAYAD DESOM, PALAYAD THALASSERY BY ADV SMT.M.A. ZOHRA`** ## **`RESPONDENTS/RESPONDENT/PLAINTIFF:`** ``` K.RATHNAKARAN S/O.LATE GOPALAN, AGED 62 YEARS, K.K.HOUSE, DHARMADAM AMSOM, PALAYAD, THALASSERY BY ADV SRI.M.SASINDRAN ``` R.S.A. Nos. 220 & 955 of 2012 **==> picture [20 x 9] intentionally omitted <==** ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2024, ALONG WITH RSA.955/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.S.A. Nos. 220 & 955 of 2012 ..3.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 RSA NO. 955 OF 2012 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 29.11.2011 IN AS NO.132 OF 2008 OF THE ADDITIONAL SUB COURT, THALASSERY ARISING OUT OF THE DECREE AND JUDGMENT DATED 25.03.2008 IN OS NO.151 OF 2002 OF MUNSIFF COURT, THALASSERY APPELLANT/S: ``` - **`1 K.JANAKI AGED 70 YEARS W/O.RAGHAVAN, JANAKI NIVAS, DHARMADAM AMSOM, PALAYAD DESOM, PALAYAD P.O., THALASSERY.`** - **`2 ALAKKADAN LAKSHMI AGED 74 YEARS D/O.MATHU, JANAKI NIVAS, DHARMADAM AMSOM, PALAYAD DESOM, PALAYAD P.O., THALASSERY.`** ``` BY ADV SMT.M.A.ZOHRA ``` ## **`RESPONDENTS/RESPONDENTS/2ND DEFENDANT AND LRS OF 3RD`** ## **`DEFENDANT:`** - **`1 K.RETNAKARAN,AGED 62 YEARS, S/O.LATE GOPALAN, K.K.HOUSE, DHARMADAM AMSOM, PALAYAD DESOM, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.`** - **`2 SAINABHA AGED 64 YEARS W/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,`** R.S.A. Nos. 220 & 955 of 2012 ..4.. - **`P.O.PALAYAD, THALASSERY-670661.`** - **`3 RAHMAN, AGED 43 YEARS S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.`** - **`4 RIYAS AGED 40 YEARS`** - **`S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.`** - **`5 SHAJEER AGED 37 YEARS`** - **`S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.`** - **`6 SHAMSU AGED 27 YEARS`** - **`S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.`** - **`7 SHAYINA AGED 43 YEARS`** - **`S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.`** - **`8 FASILA AGED 24 YEARS`** - **`D/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.`** - **`9 RASHI AGED 23 YEARS`** - **`S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.`** - **`BY ADVS. SRI.M.SASINDRAN SMT.K.ANILA THIRUVALLA SRI.ESM.KABEER`** ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2024, ALONG WITH RSA.220/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.S.A. Nos. 220 & 955 of 2012 ..5.. ## **K. BABU, J** **-------------------------------------------------** ## **R.S.A. Nos. 220 & 955 of 2012 ------------------------------------------------Dated this the 6[th] day of March, 2024** ## **JUDGMENT** These Regular Second Appeals arise from the common judgment and decree passed by the Munsiff’s Court, Thalassery in O.S.Nos. 151 of 2002 and 376 of 2003. Plaintiff Nos. 1 and 2 in O.S.No.151 of 2002 are the appellants in RSA No.955 of 2012. Defendant No.2 and the legal representatives of defendant No.3 are the respondents. Defendant Nos. 1 to 3 in O.S.No.376/2003 are the appellants in RSA No.220 of 2012. The sole plaintiff is the respondent. 2. The parties and the subject matter will hereinafter be referred to with reference to O.S.No.376 of 2003. 3. O.S.No.376 of 2003 is a suit for injunction. O.S.No.151 of 2002 is a suit for fixation of boundary and R.S.A. Nos. 220 & 955 of 2012 **==> picture [20 x 9] intentionally omitted <==** injunction. In O.S.No.376 of 2003, plaint A Schedule property is described as 10.58 cents of land. The plaint B Schedule property is described as 11.4 cents of land. The plaint C Schedule is described as a way. Plaintiff is the owner of plaint A schedule property. Defendants are the owners of plaint B Schedule property. Plaint B schedule property in O.S.No.376/2003 is the plaint schedule property in O.S.No.151 of 2002. The extent of the plaint schedule property in O.S.No.151 of 2002 is stated to be 15.25 cents of land. 4. Both the suits were jointly tried. As per judgment dated 25.03.2008, the Munsiff’s Court dismissed O.S.No.151 of 2002 and decreed O.S.No.376 of 2003. The defendants challenged the common judgment and decree by filing appeals before the Subordinate Judge’s Court, Thalassery. The decree in O.S.No.376 of 2003 was challenged in A.S.No.130 of 2008. The decree in O.S.No.151 of 2002 was challenged in A.S,No.132 of R.S.A. Nos. 220 & 955 of 2012 **==> picture [20 x 9] intentionally omitted <==** 2008. The First Appellate Court dismissed both the appeals. The common judgment and decree passed by the Munsiff’s Court and confirmed by the First Appellate Court is under challenge in these Regular Second Appeals. 5. The plaintiff set forth the following pleadings:The plaintiff is the absolute owner in possession of plaint A Schedule property. The defendants are in possession and enjoyment of plaint B Schedule property. The plaint C schedule property is part of a road passes through the further north of plaint B schedule property. The plant C schedule property is a portion of the public Road which starts from Thalassery-Meloor PWD road on the eastern side and runs towards west for a distance of more than ½ km and reaches the residence of the plaintiff, defendants and many others. The defendants have no manner of any exclusive right over C schedule way. In July, 2002, the defendants made an attempt to R.S.A. Nos. 220 & 955 of 2012 **==> picture [20 x 9] intentionally omitted <==** encroach upon plaint C schedule property. The plaintiff and other members of the public prevented the defendants from encroaching upon the property. After that, the defendants instituted O.S.No.151 of 2002 for fixation of boundary and other consequential reliefs against the plaintiff. The claim of the defendants that they are in possession of 15.25 cents of land is not true. The attempt of the defendants is to carve out a portion of the public way. They have no title over 15.25 cents of land as claimed by them. 6. The defendants set up the following pleadings:- The predecessor of the defendants acquired right over plaint A schedule property having an extent of 15.25 cents of land as per the partition deed No.1318/96 of SRO, Thalassery. In 1997 the Land Tribunal granted purchase Certificate in respect of this property. After the death of Shri. Alakkadan Mathu, the predecessor - ininterest of the defendants, the defendants are in joint R.S.A. Nos. 220 & 955 of 2012 **==> picture [20 x 9] intentionally omitted <==** possession of the property. In 1981, the defendants transferred 4.75 cents of land to one George out of the total 20 cents covered by document No.1539/81 of SRO Thalassery. The remaining 15.25 cents of land is the plaint schedule property in O.S.No.151of 2002. In 1995, the plaintiff executed an agreement vide document No.570/1995 of SRO, Thalassery whereby they divided the plaint schedule property into two portions. 7.50 cents were given to Devi and Lakshmi and 3.75cents were given to Janaki and her children. The parties decided to keep 4 cents of land in common. The northern side of the property is the campus of DIET. The land on the south of the property is owned by one Prabhakaran. The land on the eastern side is in the possession of one Nanu Asari and the land on the western side is in the possession of the plaintiff. There was a water passage (thodu) in between the property owned by the defendants and the property owned by Nanu Asari. This thodu was the R.S.A. Nos. 220 & 955 of 2012 **==> picture [26 x 9] intentionally omitted <==** natural boundary of the plaint schedule properties. Plaintiff filled the water passage in the year 2001 and fixed a boundary encroaching upon the eastern portion of the property of the defendants. Defendants had filed a complaint in this regard before the District Collector. 7. The parties went to trial. Plaintiff No.1 gave evidence as PW1 and Exts. A1 to A6 were marked on the side of the plaintiffs. Exts. B1, B2 and B2(a) were marked on the side of the defendants. Exts.C1 to C6 were marked as Court Exhibits. 8. After hearing both sides, this Court re-framed the substantial question of law as follows:- Have the Courts below drawn necessary inferences and presumptions based on the pleadings and evidence? 9. The dispute in these suits centered around the following questions:- R.S.A. Nos. 220 & 955 of 2012 **==> picture [26 x 9] intentionally omitted <==** - (a) Have the defendants acquired title and possession over 15¼ cents of land as claimed by them? - (b) Is C schedule way in existence? - (c) Have the defendants any right to trespass upon C schedule way? - (d) Are the defendants entitled to fixation of boundary as prayed for? 10. The case of the defendants is that they have acquired title and possession over 15¼ cents of land. They relied on Exts. A1 and A6 to substantiate their contentions. Ext.A1 is a certified copy of the partition deed No.1318/1996 of SRO, Thalassery. Ext.A1 shows that C Schedule property therein has been allotted to Alakkadan Mathu who is the predecessor-in-interest of the defendants. Ext.A6 is the Purchase Certificate in respect of the property. Ext.A6 Purchase Certificate would show that the extent of the property covered by the Purchase Certificate is 20 cents. The extent of the R.S.A. Nos. 220 & 955 of 2012 **==> picture [26 x 9] intentionally omitted <==** property covered by Ext.A1 is 15¼ cents. The case of the defendants is that out of the 20 cents of land devolved upon them, 4¾ cents were assigned to one George in the year 1981 as per document No.1539/1981, and in 1994, with the death of Alakkadan Raghavan, the remaining property devolved upon them. They have a further case that the property was partitioned in the year 1995 by virtue of a partition deed 570/1995. This document has not been produced from the side of the defendants. Plaintiff No.1 gave evidence as PW1. He deposed in tune with the pleadings. On the side of the defendants Exts.B1 to B2(a) were marked. Ext.B1 is a certified copy of the partition deed No.570/1995. As per Ext.B1 document, the property is seen divided into two portions. One portion having an extent of 7½ cents and the other having an extent 3¾ cents allotted to Janaki. Therefore, the total extent of the property covered by Ext.B1 is only 11¼ cents. The case of the defendants is that the remaining R.S.A. Nos. 220 & 955 of 2012 **==> picture [26 x 9] intentionally omitted <==** extent, being 4 cents, has been kept in common by the plaintiff without partition in the year 1995. Therefore, they are seeking fixation of boundary in respect of 15¼ cents of land. 10. The specific case of the plaintiff is that the defendants have no title over 15¼ cents of land. Relying on Ext.B1, the plaintiff contends that the defendants have title and possession over only 11¼ cents of land. 11. The commissioner appointed by the Court visited the property twice and prepared Exts.C1 to C4. The Commissioner failed to note any signs of trespass as alleged by the defendants. The Commissioner, after measuring the property, based on Ext.B1, reported that he has not seen any encroachment on the western side of the plaint B schedule property (properties claimed by the defendants). The Commissioner specifically noted that the total extent of the property in the possession of the defendants is 11¼ cents. The Commissioner visited the R.S.A. Nos. 220 & 955 of 2012 **==> picture [26 x 9] intentionally omitted <==** property on a second time as per the request of the defendants. The Commissioner measured the property with the help of field measurement book and title deeds of the parties and prepared Ext.C4 plan. In Ext.C4 plan, he has located plot A as the property owned by the plaintiff and plot B as the properties in the possession of defendants. The Commissioner noted that plot A has an extent of 10.58 cents and plot B has 11.4 cents. The Commissioner also noted the disputed portion as yellow shaded portion having an extent of one cent. The defendants admitted that they effected partition in respect of the property as per deed No.570/95 (Ext.B1). They claim title over the property as per Ext.A1. The specific challenge of the plaintiff is that the defendants have acquired only 11¼ cents of land and they are not in possession of 15¼ cents of land. PW1 is a signatory to Ext.B1 document. He would depose that he affixed his signature in Ext.B1 fully understanding the contents of it. R.S.A. Nos. 220 & 955 of 2012 **==> picture [26 x 9] intentionally omitted <==** He further stated that he had no dispute regarding the measurement shown in Ext.B1. PW1 deposed that the property on the immediate west of the property was assigned to one Goerge. Ext. B1 shows that the western boundary of the property belongs to Nani, the mother of defendant No.2. If the property assigned to George was on the immediate west of their property, the western boundary in Ext.B1 should have been shown as the property belonging to George. The recitals in Ext.B1 would clearly show that the entire property left after the assignment was partitioned. Ext.B1 is silent regarding keeping of any portion of the property in common. Ext.B1 makes it clear that the entire property remaining after the assignment was divided into two portions. Therefore, the extent of the property partitioned as per Ext.B1 is only 11¼ cents and not 15¼ cents as contended by the defendants. The learned Counsel for the respondents, relying on _**Anjil Vellachi v. Mamuni Bhaskaran**_ [2009 R.S.A. Nos. 220 & 955 of 2012 **==> picture [26 x 9] intentionally omitted <==** (3) KHC 728] _**,**_ contended that as there is no specific prayer for declaration and recovery of possession, the remedy for fixation of boundary cannot be granted. 12. A cloud is cast on the title as claimed by the defendants. In _**Anathula Sudhakar vs P. Buchi Reddy**_ _**(Dead) By Lrs & Ors**_ **[** 2008 4 SCC 594], the Apex Court held that where a cloud is raised on plaintiff's title and he does not have possession, a suit for declaration and possession with or without a consequential injunction is the remedy. The Apex Court further held that where plaintiff's title is not in dispute or under a cloud but he is out of possession, he has to sue for possession with a consequential injunction. 13. In the present case, a cloud is raised on the title of defendants and they are not in possession of the property claimed by them. Therefore, they are not entitled to the relief of fixation of boundary. The Trial Court as well as the First Appellate Court have drawn R.S.A. Nos. 220 & 955 of 2012 **==> picture [26 x 9] intentionally omitted <==** necessary inferences and presumptions based on the pleadings and evidence. 14. The plaintiff has prayed for a relief of permanent prohibitory injunction in respect of plaint C schedule property. It is claimed that C schedule is a pathway. The Commissioner has specifically noted C schedule way on the northern side of the property. PW1 (defendant No.1) would state that a Committee was formed for the construction of road in the year 2000. He has also admitted that Ext.B2 is the Minutes Book of the Committee wherein he had also affixed his signature which is marked as Ext.B2(a). Exts. C5 and C5(a) report and plan show that the road has reached the north eastern boundary of the property of the plaintiff. The Commissioner also reported that 0.44 cents of land which is marked as ‘DCEF’ in Ext.C6 plan is the area encroached by defendant No.2. The trial Court found that C schedule way is in existence and that the R.S.A. Nos. 220 & 955 of 2012 **==> picture [26 x 9] intentionally omitted <==** defendants have no exclusive right over the same. Therefore, the Trial Court granted permanent prohibitory injunction in favour of the plaintiff in respect of C schedule way. 15. The findings recorded by the Trial Court and confirmed by the First Appellate Court do not require any interference. The substantial question of law is therefore answered against the appellants. The Regular Second Appeals are dismissed. Sd/- **K.BABU, JUDGE** kkj