Susi v. Sujathan and Unnikrishnan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943** **RSA NO. 1096 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OS 741/2001 OF PRINCIPAL MUNSIFF** ## **COURT,IRINJALAKUDA** **AS 37/2011 OF PRINCIPAL SUB COURT,IRINJALAKUDA** ## **APPELLANT/RESPONDENT/PLAINTIFF:** SUSI, AGED 58 YEARS, W/O. KUNJUPARAMBIL XAVIER,ARIPPALAM DESOM, POOMNAGALAM VILLAGE,MUKUNDAPURAM TALUK. BY ADV SRI.M.SASINDRAN ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** 1 SUJATHAN, AGED 45 YEARS, S/O.APU,EZHAPPULLI HOUSE,ARIPALAM DESOM, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK, PIN-680688 2 UNNIKRISHNAN, AGED 47 YEARS, S/O.APU,EZHAPPULLI HOUSE,ARIPALAM DESOM, POOMANGALAM VILLAGE,MUKUNDAPURAM TALUK, PIN-680688 BY ADV SRI.K.S.BHARATHAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A No.1096/2014 2 ## 'CR' K.BABU, J . -------------------------------------- R.S.A No.1096 of 2014 --------------------------------------Dated this the 1[st] day of November, 2021 ## JUDGMENT This Regular Second Appeal arises from the judgment dated 07.01.2014 in A.S.No.37/2011 of the Principal Subordinate Judge's Court, Irinjalakkuda, which set aside the judgment dated 25.02.2011 in O.S.No.741/2001 passed by the Principal Munsiff, Irinjalakkuda. 2. The plaintiff is the appellant. 3. The brief facts giving rise to this appeal are as follows: 3.1. The plaintiff instituted the suit for fixation of boundary and consequential injunction against the defendants in respect of 16½ cents of property in Survey No.762/4 of Poomangalam Village. The plaintiff acquired title and possession of the plaint schedule property under sale deed No.2762/1992. The property of the defendants lies on the immediate south and west of the plaint schedule property. At some portions, the plaint schedule property is lying higher than the defendants' property. The defendants attempted to encroach upon the plaint schedule property on some portions. The defendants also R.S.A No.1096/2014 3 attempted to cut and remove trees standing in the plaint schedule property. The plaintiff prevented the defendants from cutting and removing the trees. The plaintiff is entitled to fixation of the boundary of the plaint schedule property and for a permanent prohibitory injunction against the defendants from trespassing into the plaint schedule property. 4. The defendants resisted the case of the plaintiff. The trees standing on the southern side of the plaintiff's property were in a dangerous position, and the same were about to fall over the tarwad building of the defendants. The plaintiff does not have right over 16½ cents of property. The plaintiff trespassed upon the property of the defendants on its southern and eastern boundaries. There are definite boundaries on the southern and eastern sides of the plaint schedule property, and the same was destroyed by the plaintiff and her husband. 5. The defendants also raised a counterclaim seeking recovery of possession of a portion of the property owned by them, describing the same as 'B' schedule property, and for a consequential injunction. 6. The evidence, in this case, consists of the oral evidence of R.S.A No.1096/2014 4 PWs 1 and 2 and DWs 1 and 2. Exhibits A1 to A9 were marked on the side of the plaintiff and Exts.B1 to B4 were marked on the side of the defendants. Exhibits C1 to C3 series also were marked as Court Exhibits. 7. The Trial Court decreed the suit and granted a decree for fixation of the boundary of the plaint schedule property in accordance with Ext.C3(a) plan. The Trial Court also granted relief of permanent prohibitory injunction in favour of the plaintiff restraining the defendants and their men from trespassing upon the plaint schedule property and from annexing any portion of the same. The counterclaim preferred from the side of the defendants was dismissed by the Trial Court. 8. The defendants challenged the decree and judgment passed by the Trial Court by filing A.S.No.37/2011. The First Appellate Court held that the Trial Court rightly found that the boundary has to be fixed to the plaint schedule property as prayed for. The First Appellate Court further held that the defendants are in possession of 0.285 cents of property of the plaintiff. The First Appellate Court relying on Anjil Vellachi v. Mamuni Bhaskaran [2009 (4) KLT SN.6 R.S.A No.1096/2014 5 (Case No.6)], held that as there was no specific prayer for recovery of possession in the plaint, the remedy for fixation of the boundary cannot be granted. The First Appellate Court reversed the judgment and decree passed by the Trial Court, and the suit, as well as the counterclaim, were dismissed. ## 9. On 27.03.2015, this Court admitted this Regular Second ## Appeal on the following substantial questions of law: - 1) Has not the lower appellate court erred in holding that a decree for fixation of boundary could not be granted without seeking recovery of possession of the property which was found to be so in the course of proceedings and only because of the lack of clear boundaries for the property? - 2) Is the appellate court justified in dismissing the suit for want of recovery of possession especially when the disputed land is a narrow strip of land? ## 10. After hearing both sides, this Court formulated the following substantial question of law also: - 1) Did the Court below misconstrue the evidence while recording a finding that the defendants were in possession of the disputed strip of land? 11. Heard Sri.M.Sasindran, the learned counsel for the appellant/plaintiff and Sri.K.S.Bharathan, the learned counsel appearing for the respondents/defendants. 12. The learned counsel for the appellant/plaintiff contended that since the disputed property is a narrow strip of land and if the remaining portion of the plaintiff's land is found to be in the plaintiff's R.S.A No.1096/2014 6 possession, the same must be held to extent to the border unless the defendants established that they are in settled possession of that strip of land. 13. Per contra, the learned counsel for the respondents/defendants submitted that going by the pleadings of the parties, there is clear admission from the side of the plaintiff that the disputed strip of land is in possession of the defendants, and so the plaintiff should have sought for relief of recovery of possession and relief by way of fixation of boundary is only a shortcut and the same cannot be granted. 14. The fundamental question that falls for consideration is whether the plaintiff is entitled to get the boundary of the plaint schedule property fixed in accordance with Ext.C3(a) plan, wherein the disputed strip of land is identified in green colour. 15. Admittedly, the plaintiff acquired title over 16.50 cents of land in Survey No.762/4. The defendants acquired title over 16 cents of land in the same survey number, which is lying on the immediate south and west of the plaint schedule property. The Appellate Court relying on Ext.C3(a) plan, held that the defendants are in possession R.S.A No.1096/2014 7 of 16.285 cents of land and the plaintiff is in possession of 16.215 cents of land. The extent coming to 0.285 cents, located in Ext.C3(a) plan in the green shade, is the disputed strip of land. 16. The learned counsel for the appellant/plaintiff contended that the defendants have encroached upon the green shaded portion on the western side of the plaint schedule property, that they are not in settled possession of the disputed land, and that they can only be treated as encroachers, as far as the narrow strip of land is concerned. 17. The learned counsel for the appellant/plaintiff contended that the finding of the First Appellate Court to the effect that the defendants are in possession of 0.285 cents of land is a misconstruction of the evidence. The learned counsel for the respondents/defendants countered and submitted that the defendants are in settled possession of the disputed land going by the pleadings of the parties. 18. The construction of the word “possession” is useful in the present context to resolve the controversy raised and answer the substantial questions of law formulated. The term “possession” as R.S.A No.1096/2014 8 applied to the property has been given many different meanings both in common speech and in legal terminology. Still, it is most commonly used to indicate holding or retaining property in one's power or control. The learned author in Corpus Juris Secundum , [Volume 73, pages 217 to 223] illustrates “possession” as follows: “Both in common speech and in legal terminology, there is no word more ambiguous in its meaning than “possession” when considered in its relation to property. It is interchangeably used to describe actual possession and constructive possession. “Possession of property” has been defined as the holding or retaining of property in one's power or control. Generally, one has possession of personal property when it is under his dominion and subject to his control. “Possession” denotes custody coupled with a right or interest of proprietorship, and possession is inclusive of custody. A person is in possession of a chattel when he has physical control of a chattel with the intent to exercise that control. It has been stated that possession has three attributes: actual or potential physical control, intention to exercise dominion, and external manifestation of intent and control. Generally, possession is deemed to follow ownership or the legal title. One who has title and the present right of possession may take peaceable possession of what he claims to be his own, and, at common law, one owning and entitled to the possession of personalty could enforce his right of possession thereto against any person. As a degree of legal title. Although possession is one of the elements of legal title, since title implies possession, either actual or constructive, possession does not necessarily imply title, and is distinguishable from title. However, it has been stated that possession, although the lowest type of title, is good against anyone not having a better title, and is title as against a wrongdoer. …..................................... …..................................... “Possess” or “possessed”, in connection with property, is a variable term, and has different meanings as it is used in different circumstances. It has been defined as to have legal title to, or to own, property. It is commonly employed to indicate ownership of any kind of property; and in popular usage, the word includes real and personal property to which one has title as his landed possessions. It is only in its technical or strictly legal sense that it can be limited to mean only actual physical possession, or the right of immediate actual possession, and be applied only to personalty. It is often used as equivalent to “seized.” R.S.A No.1096/2014 9 Presumption of possession based on title. As a general rule, in the absence of evidence as to the actual possession of land, the possession is presumed to have been with the owner of the legal title; and where actual possession by a third person is shown, but title is not shown, the possession will be presumed to be in subordination to the title of the true owner. The same is true with respect to the possession of personal property. ….................................... ….................................... Possession of property may be either actual or constructive. “Actual possession” has been defined as simply having the property in the immediate control or power of the party. “:Actual possession” of a chattel exists when the thing is in the actual manual custody of the party; and it has been defined as having, holding, or detention of property in one's own power or command; or ownership, whether rightful or wrongful. With respect to land, the term has been defined as the exercise of acts of dominion over it, the use of it to which it is adapted, and in taking the profits of which it is susceptible. It has also been defined as actual, open and visible possession or occupancy in fact. Actual possession may be shown by acts of ownership or dominion, and has been said to be the type of possession or control owners customarily exercise in holding, managing, and caring for their property. Ordinarily, the use of land for recreational purposes is insufficient to show actual possession, unless the recreational use is extensive and apparent. Constructive possession, as applied to realty, has its origin in the maxim of the common law “possession of a part shall be construed as ” possession of the whole . In a general way, it may be said to be that possession which exists in contemplation of law without actual personal occupancy of the property, or a possession in law, without possession in fact.” 19. In Puran Singh v. State of Punjab (AIR 1975 SC 1674) = (1975 KHC 197) the Apex Court observed that settled possession must be extended over a sufficiently long period and acquiesced in by the true owner. In Munshi Ram and Others v. Delhi Administration (AIR 1968 SC 702) = (1968 KHC 589) , the Apex Court held that a casual act of possession, stray or even intermittent acts of trespass would not R.S.A No.1096/2014 10 mature into settled possession. 20. In the present case, the disputed property is a narrow strip of land having an extent of 0.285 cents. There is no evidence that the appellant/plaintiff had acquiesced the alleged possession of the narrow strip of land by the defendants. The specific pleading of the plaintiff in paragraph No.4 of the plaint is that the defendants encroached upon a narrow strip of land on the western boundary of the plaint schedule property. Therefore, it cannot be held that the defendants, at any rate, were in settled possession of the disputed narrow strip of land, which lies along the western boundary of the plaint schedule property. The defendants have not succeeded in establishing that they have perfected right over the narrow strip of land by adverse possession thereof over the required statutory period. 21. While considering a case, in which a narrow strip of land was the disputed property, where the plaintiff therein prayed for fixation of boundary, this Court in Damodara Panicker v. Ayyappan Kutty (1962 KHC 153) held thus: “4. It is freely conceded by the parties that each is in possession of his respective survey number except the very narrow strip now in R.S.A No.1096/2014 11 dispute at the verge of the mutual boundary and that the fence between their possessions is of a temporary character. It is common knowledge that in these parts monsoons are heavy and temporary fences require renewal every year. Such temporary fences are not to be expected to be put up with mathematical precision at the correct location but may take gradual deviations according to the conditions of the place. There is no case here that the survey demarcations were any way incorrect. Since the properties are for their most part in the possession of the respective owners and the encroachment with the temporary fence is not much, the suit is virtually for fixing the boundary in its correct place. To such suits, the rule of onus in suits for ejectment of persons in possession of properties would be out of place, and the rule shall be on a par with that enunciated by their Lordships of the Judicial Committee in Lukhi Narain Jagaden v. Maharaja Jodu Nath Deo (21 IA 39) in somewhat similar circumstances: _“ ... in cases where the disputed line of division runs between waste lands which have not been the subject of definite possession. ..the ordinary rule regarding the onus incumbent on the plaintiff has really no application . . . The parties to the suit are in the position of counter claimants; and it is the duty of the defendant, as much as of the plaintiff, to aid the Court in ascertaining the true boundary. Were any other rule recognised, the result might be that some boundaries would be incapable of judicial settlement.”_ 5. Where the disputed land is a narrow strip, (in this case, it is of width ranging from two to three feet) at the verge of the plaintiffs land adjoining the defendants property it would in most cases, be difficult to prove its actual possession as such. If the remaining portion of the plaintiffs land is admitted or found to be in the plaintiffs possession, the same must be held to extend to the border, unless there be clear evidence to the contrary. In other words, when a person is admitted or found to be in possession of his land identified by a Survey Number and the dispute by the adjoining landholder concerns only a narrow strip at the mutual boundary, the possession of the former will be presumed to be coextensive with the relative survey division and the burden will be on the party claiming the encroachment to prove his adverse possession thereof for over the statutory period (of 12 years). See Achuthan Unni v. Vally (1962 KLJ 400) .” ## 22. In P.Narayanan Nair v. E.Achuthan Nair and another (AIR ## 1974 Ker 51) this Court held thus: _“44...........As the owner of one piece of land is under a legal duty not to interfere with the possession and enjoyment of the owner of a_ R.S.A No.1096/2014 12 _neighbouring land as part of that duty or for its performance rather, he must know the limits of the neighbour's land. When the latter seeks his co-operation to fix the dividing line separating his property he must respond to it. If he refuses to co-operate or claims to have the dividing line drawn in a different way than that put forward by the neighbour there is an uncertainty or a threat to or a cloud cast to the right of the possession of the land of the neighbour and the latter can approach the court seeking redress. It may not be possible for him to seek recovery or seek injunction as a main relief in that relief will depend on the fixation of the dividing line. The main relief can be one for fixation of boundary and the other reliefs, if necessary, will be consequential or identical.”_ ## 23. In E.Achuthan Nair v. P.Narayanan Nair (AIR 1987 SC 2137) , the Apex Court upheld the judgment of the Division Bench of this Court in P.Narayanan Nair v. E.Achuthan Nair and another (supra). 24. In the given case, since the dispute is only regarding a very narrow strip of land lying along with the western boundary line of the plaint schedule property, it has to be held that the property of the plaintiff as per the title deed and survey records extends up to the green shaded portion in Ext.C3(a) plan and it must be held that he is in possession of the narrow strip of land (shaded in green colour). 25. Resultantly, the finding of the First Appellate Court to the effect that the defendants are in possession of the green shaded portion can only be treated as a misconstruction of evidence. 26. Now, coming to the reliance placed by the First Appellate Court on the judgment of this Court in Anjil Vellachi v. Mamuni Bhaskaran (supra), it is to be noted that this Court in Kathirummal R.S.A No.1096/2014 13 Chirammal Karthyayani v. Kunnool Balakrishnan and Others [2014 (2) KHC 108] has distinguished Anjil Vellachi and Mamuni Bhaskaran (supra) , while dealing with a dispute relating to a narrow strip of land, where the plaintiff therein had prayed for fixation of boundary, ## in the following words: “11. That was a case where the disputed plot 'MNKL' was having an extent of 22 cents. That plot was found lying together with plot 'MNOP' measuring 43 cents as a compact plot . The disputed plot along with the remaining plot was lying on a higher level than the eastern boundary property. The eastern boundary property was in possession of the plaintiff. That property was separated from the plot 'MNKL' by row of trees on the vertical ridges. It was found that including the disputed 22 cents the entire 65 cents of land in the possession of the defendants was separately identified. In that context it was held that a suit for fixation of boundary cannot be a shortcut or substitute for recovery of possession and that the remedy if any, of the plaintiff was to sue for recovery of possession on the strength of title besides, seeking fixation of the boundary. The position in this case is entirely different. In the case on hand, the dispute centers round a very narrow strip of land.” ## 27. It was further held by this Court in Kathirummal Chirammal ## Karthyayani (supra) , thus: “12. If it is a case where large extent of property lying in a different survey number is claimed by the plaintiff based on a survey record alone, when actually it is in the possession of the defendant, the plaintiff has to seek recovery of possession of that large extent of property which is in the possession of the defendant. So far as the case on hand is concerned, it is only a very narrow strip of land lying along the boundary line. Hence, the presumption should be that the person, who has got title to the property and whose boundary extends upto the line stated above is in possession of that narrow strip of land as well.” ## 28. Both the Trial Court and the First Appellate Court had held ## that the plaintiff proved his title over the property, including the R.S.A No.1096/2014 14 green shaded narrow strip of land. There is no evidence to show that the plaintiff has been dispossessed by the defendants from the disputed land. The defendants failed to establish any right over the narrow strip of land, which is lying along the western boundary of the plaint schedule property. The resultant conclusion is that the plaintiff is entitled to fixation of boundary as prayed for in the plaint. The substantial questions of law are answered in favour of the appellant. Accordingly, the Regular Second Appeal is allowed. The judgment and decree of the First Appellate Court in A.S.No.37/2011 are set aside. The judgment and decree passed by the Munsiff's Court, Irinjalakkuda in O.S No.741/2001, are restored. The parties are directed to bear their respective costs. Sd/K.BABU, JUDGE KAS