R.S.A. No. 1183 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** ## **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944** ## **RSA NO. 1183 OF 2013** ## **AGAINST THE JUDGMENT DATED 19.07.2013 IN AS 29/2013 OF ADDITIONAL DISTRICT** ## **COURT-II, MAVELIKKARA FROM THE DECREE AND JUDGMENT IN O.S.NO.147/2010 ON THE** ## **FILE OF OS 147/2010 OF MUNSIFF COURT, MAVELIKKARA** ## **APPELLANT/RESPONDENT IN THE COURT BELOW & DEFENDANT IN THE TRIAL COURT:** RAJAN, S/O MAIDHEEN KUNJU, AGED 58 YEARS, RAJ BHAVANAM, CHUNAKKARA SOUTH MURI, CHUNAKKARA VILLAGE. BY ADVS. SRI.K.B.PRADEEP SRI.ASHOK SURESH ## **RESPONDENT/APPLICANT IN THE COURT BELOW & PLAINTIFF INT HE TRIAL COURT** - 1 SARAMMA JACOB, AGED 60 YEARS, W/O. LATE ONNONY JACOB, AMBANATTU VILAYIL, PEROORKARAZHMA MURI, - THAMARAKKULAM VILLAGE-695 110. - 2 SONY J. AMBANATTU, AGED 31 YEARS, S/O. LATE ONNONY JACOB, AMBANATTU VILAYIL, PEROORKARAZHMA MURI, - THAMARAKKULAM VILLAGE-695 110. - 3 SOUMYA J. AMBANATTU, AGED 29 YEARS, S/O. LATE ONNONY JACOB, AMBANATTU VILAYIL, PEROORKARAZHMA MURI, THAMARAKKULAM VILLAGE-695 110. BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 11.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A.No. 1183 of 2013 2 ## **JUDGMENT** ## **Dated this the 11[th] day of November, 2022.** This R.S.A has been directed against the judgment and decree in A.S.No. 29 of 2013 on the file of Additional District Court-II, Mavelikkara which in turn arise out of the judgment and decree in O.S.No. 147 of 2010 on the file of Munsiff's Court, Mavelikkara. 2. Defendant is the appellant. Suit is one for eviction and realization of arrears of rent. Plaint schedule property originally belonged to late Unnunni Jacob. Plaintiffs are the wife and children of late late Unnunni Jacob. It is alleged that defendant took the plaint schedule shed on lease on 05.10.2001 from late Unnunni Jacob on a monthly rent of Rs.1,500/- for sale of bricks and other materials. Defendant filed a suit against forceful eviction against late Unnunni Jacob. As per lease agreement, defendant is bound to vacate the shed after the period. Since he was not ready to vacate the shed, notice was issued demanding to vacate the shed. Even after that, defendant did not surrender the vacant possession of the shed. Hence the suit. R.S.A.No. 1183 of 2013 3 3. Defendant filed written statement contending that there is no proper termination of lease as per Section 106 of Transfer of property Act, 1882. All legal heirs of late Unnunni Jacob are not made parties to the suit. A part of the shed is situated in Puramboke land comprised in Survey No.194/1/7. So the suit is bad for non joinder of necessary parties. Plaint schedule shed is also not identifiable. Kerala State is a necessary party to the suit. It is also alleged that an amount of Rs.30,000/- was paid as advance to late Unnunni Jacob. 4. PW1 examined and Exts. A1 to A5 marked from the side of plaintiffs. DW1 examined and Exts.B1 to B5 marked from the side of the defendant. Exts. C1 and C1(a) also marked. 5. Trial court on appreciating the facts and circumstances and evidence adduced, found that plaint schedule shed is unidentifiable and a decree for eviction cannot be granted. It is also found that State of Kerala is a necessary party and hence suit is bad for non joinder of necessary parties. .Hence prayer for eviction was disallowed and plaintiff was allowed to realize arrears of rent of Rs.6,000/-. R.S.A.No. 1183 of 2013 4 6. Against which, plaintiff took up the matter in appeal and the Additional District Court-II, Mavelikkara allowed the appeal setting aside the judgment and decree to the extend it disallowed the prayer for eviction. 7. Aggrieved by the judgment and decree passed by the 1[st] appellate court, appellant/defendant approaches this Court in this regular second appeal. Substantial question of law formulated by the appellant, reads thus; “1. Whether the court below is justified in passing a decree for eviction of a leased out shed fitting the description of a building, for monthly rent, notwithstanding the mandate of S.11 of the Kerala Building Lease and Rent Control Act? 2. Is the lower appellate court justified in issuing directions to the District Collector, when the suit is laid on a totally different cause of action? 3. Did not the lower appellate court erred in ignoring O.47 Rule 22 and Rule 33 of the Code of Civil Procedure?” 8. Notice was issued to the respondents. Lower courts records were called for and both sides were heard. R.S.A.No. 1183 of 2013 5 9. According to the learned counsel for the appellant, suit filed by the plaintiff is not in compliance with Order 7 Rule 3 as well as Rule-18 of Civil Rule for Practice. It is also his contention that the plaint schedule property is not identifiable and the portion of the shed in the possession of the defendant has been encroached to puramboke land. State of Kerala has not been made a party and hence, plaintiffs are not entitled to evict the defendant from the puramboke land. Further it is contended that though plaintiffs themselves were well aware of the issue of identification of the plaint schedule property and accordingly, they filed a petition to amend the plaint before the Trial court, it was dismissed by the Trial court and before the 1[st] appellate court also plaintiff filed a petition to amend the plaint. But that also has been dismissed. In the said circumstances, with the available description of the plaint schedule, it is not identifiable and hence an executable decree cannot be passed. It is contended that on that ground itself the decree passed by the 1[st] appellate court is to be set aside. It is also contended that Exts.C1 and C1(a) commission report and plan convincingly establish that, portion of the shed is situated in puramboke land and the Trial R.S.A.No. 1183 of 2013 6 court rightly dismissed the suit for the reason that the Kerala State has not been made a party. But the 1[st] appellate court without properly evaluating the facts and circumstances, decreed the suit. 10. The learned counsel for the respondents/plaintiffs on the other hand would contend that Trial court simply dismissed the suit on the ground of, non joinder of necessary parties since the State of Kerala has not been made a party and further for the reason that plaint schedule shed is unidentifiable. But the 1[st] appellate court on proper evaluation of facts and law involved, decreed the suit and hence no interference is called for at the instance of this Court. 11. First question would be about the identity of the plaint schedule property. As per Order 7 Rule 3 when the subject matter of the suit is immovable property the plaint shall contain a description of the property sufficient to identify it and in case such property identified by boundaries or numbers in record of settlement or survey the plaint shall specify such boundaries or numbers. In this case, according to the learned counsel, the description of the plaint schedule property in the plaint does not contain any description of the property as contemplated under Order 7 Rule 3. R.S.A.No. 1183 of 2013 7 12. On perusing the plaint schedule, it is seen that District, Taluk, Village, Panchayat re-survey number and also boundaries are described in the schedule with regard to the description of the property the number of shed as TP/4/338 alone has been shown. The suit in this case has been filed for eviction of a tenant and for realization of arrears of rent. Since the immovable property in the present case is a shed bearing a specific number, and it has been clearly provided in the plaint schedule, though extent of the property is not specifically shown since the plaint schedule property is a building let out to the defendant there has substantial compliance of Order VII Rule (3). 13. So also the learned counsel for the plaintiff bring to my attention to Ext.A4, certified copy of the plaint in O.S.No.72/2003 filed by the defendant against the predecessor of the plaintiffs, against forcible eviction. In that case, description of the plaint schedule property is with the boundary description survey sub division, District, Taluk, Village etc. along with a description of the property shop rooms as TP No. 4/161/A and TP No. 4/338/B (old No.TP 338 & 339) within survey and boundaries facing north. Ext.A5 copy of the R.S.A.No. 1183 of 2013 8 decree also contains the above description. Admittedly one of the shop rooms have already been surrendered by the defendant and the present case is only with respect to the plaint schedule shop room. On evaluating the description of the properties in the plaint schedule, especially because the subject matter of the suit is only a shop (shed) with number when there is specific description of the building with number and description regarding District, Taluk, Village along with boundary, there is substantial compliance of the Order 7 Rule 3. Plaintiff can not be non suited on that ground. 14. The next contention is with regard to the identity of the plaint schedule property. According to the defendant, part of the shed is situated in the puramboke land and plaintiffs have no right to evict him from the puramboke land and hence, suit for eviction filed against him without making the State as a party is not maintainable. 15. Though there is contention with regard to the identity of the plaint schedule property, a commission was taken at the instance of the defendant himself and property of the plaintiff and the shed which is being occupied by him has been demarcated and the line separating plaintiff’s property and the puramboke land has also been R.S.A.No. 1183 of 2013 9 clearly shown in the commissioner’s plan. So, according to the learned counsel for the plaintiff, in view of the commissioner’s report and plan there is no difficulty in identifying the portion of the shed in the plaintiff’s property and which is encroached into the puramboke land. It is also the contention of the learned counsel that in Ext.B3 defendant himself admitted that from the date of inception of the tenancy he had encroached the shed into the puramboke land and is keping articles in that portion and thereby he is taking advantage of his own act of encroachment into the puramboke land. 16. The learned counsel for the plaintiffs in this context would draw my attention Poddar Plantations Limited v. Thekkemariveettil Madhavi Amma [2014 (1) KLT 439 : ILR 2014 (1) Ker.813 : 2013 KHC 736] wherein while dealing with Section 108 (q) of the Transfer of Property Act, 1882, it has been held by a learned Single Judge of this Court that a lessee is bound to keep identity of the leased property in the same condition it was when it was put in his possession and put the lessor in possession of the said property on determination of the tenancy. If the lessee, by his own act, default or negligence has interfered with the boundaries or mixed up the leased property with R.S.A.No. 1183 of 2013 10 his own land, he cannot dispute identity of the leased property and take advantage of his own act, default or negligence. 17. It is also relevant in this context to quote _Nullus Commodum Capere Protect De Injuria Sua Propria_ meaning 'no man can take advantage of his own wrong'. In Devendra Kumar v. State of Uttaranchal & Ors. [2013 9 SCC 363 : AIR 2013 SC 3325 : 2013 (3) KLT (Suppl) 62 (SC)]. Paragraph No.23 of the said judgment is relevant in this context, which is extracted below: “........... A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide: Union of India v. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340; and Lily Thomas v. Union of India & Ors., AIR 2000 SC 1650). Nor can a person claim any right arising out of his own wrong doing. (Juri Ex Injuria Non Oritur).” 18. So in the present case the defendant himself admits that from the date of tenancy he encroached the shed into the _purambokku_ land and keeping articles in that portion and when the plaintiffs filed the suit for eviction he is taking advantage of that encroachment to R.S.A.No. 1183 of 2013 11 _purambokku_ to contend that the shed is encroached upon to _purambokku_ property and is not identifiable and further that without the juncture of the State in the party array the suit filed by the plaintiffs cannot be maintained. 19. As a lessee, in violation of Section 108(q) of the Transfer of Property Act, 1882 the defendant encroached into the _purambokku_ land and meddled with the boundaries and mixed up the _purambokku_ with leased premises. Thereafter he disputes the identity of leased premises and contend that without the State being party in the proceedings the eviction sought by the plaintiffs is not maintainable. Such a contention is not sustained in law. 20. So also on the northern side of the plaint schedule property is lying Kayamkulam – Adoor Road in east-west direction with a width of 11 mtrs. It is a State Highway. Legally a person owning land adjoining a Highway has a right of access to the Highway at any point. But in the present case in Exts.C1 and C1(a) the Commissioner has demarcated ABFGA having a total extent of 3 Ares 31 sq.mtrs (8.179 cents) as _purambokku_ land . However there is clear demarcation of the part of the shed in the plaintiffs' property as well as in the R.S.A.No. 1183 of 2013 12 _purambokku_ land. So merely for the reason that defendant encroached upon the _purambokku_ land cannot be taken as a reason for refusing the relief of eviction sought by the plaintiffs with respect to the shed which is situated in his property. So I find that plaintiffs are entitled to get order of eviction of the defendant from the part of the shed which is situated in the plaint schedule property. It is up to the State Government to take appropriate action against the defendant for eviction of the part of the shed situated in _purambokku_ land in accordance with law. 21. Direction is seen to have been given by the first appellate court to the District Collector, Alappuzha to take necessary action against the defendant and for that purpose copy of the judgment is forwarded to the District Collector, Alappuzha. It has been done as per the dictum laid down in **Mandal Revenue Officer v. Goundla Venkaiah and Anr. [2010 (2) SCC 461]** . But that was a case in which proceedings were initiated against the party under the Andhra Pradesh Land Encroachment Act, 1905 and orders of eviction has been passed and steps were initiated by the Mandal Revenue Officer of the district concerned filing application before the Special Tribunal R.S.A.No. 1183 of 2013 13 constituted under the Land Grabbing Act for recovery of possession of 5 acres of land alleging that the same was illegally occupied by the predecessor in interest of the respondent in that case and the respondents took a stand denying illegal occupation and pleaded acquisition of title by adverse title on the ground that they were cultivating the land more than 50 years without interference or obstruction and the Special Tribunal allowed the application and declared the scheduled land as Government land and the appeal preferred before the Special Court was dismissed and it was challenged in Special Court in writ petition and the Division Bench of High Court did not disturb the concurrent finding recorded by the Special Tribunal and the Special Court that the scheduled land is Government land but set aside the orders passed by them on the premise that respondents have acquired title by adverse possession and they cannot be evicted by treating as land grabbers. That was challenged before the Apex Court and while dealing with such a matter the above observations were made by the Hon'ble Apex Court. But this is a case in which the suit has been filed by the plaintiff against the defendant for eviction of the plaint schedule shed part of R.S.A.No. 1183 of 2013 14 which encroaches to the puramboke land and the Government is not a party. So even if the courts give such directions, there is no mechanism to watch compliance of such orders of the court. Court Orders should not be unattended or allowed to be flouted. There is also no provision enabling the Civil court while dealing with an appeal suit challenging a judgment and decree passed against a private person to give such direction when State is not a party. Hence, the directions so given by the first appellate court is improper and unenforceable and ought to have been avoided. With the above observation appeal disposed confirming the judgment and decree passed by the 1[st] appellate court. There is no order as to cost. Sd/- ## **M.R. ANITHA, JUDGE** rps/