Viju v. Solly and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944 ``` ## **`RFA NO. 307 OF 2017`** ``` AGAINST THE JUDGMENT AND DECREE DATED 30/09/2016 IN OS 1026/2008 ``` ## **`OF I ADDITIONAL SUB COURT,ERNAKULAM`** ## **`APPELLANT/1ST DEFENDANT:`** ``` VIJU, AGED 43, ``` ``` S/O.LATE VIJAYAN, ILLIKATTU, PONEKKARA, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADVS.SRI.DINESH R.SHENOY SRI.EBIN MATHEW SMT.K.K.JYOTHILAKSHMY SRI.A.JOSEPH GEORGE ``` ## **`RESPONDENTS/(PLAINTIFF & DEFENDANTS 2 & 3):`** - **`1 SOLLY, AGED 48, D/O.LATE VIJAYANAND, W/O.SELVARAJ, ILLIKATTU, NOW RESIDING AT PULIMOOTTIL HOUSE, CANAL WARD, KANJIRACHIRA DESOM, ARIYAD SOUTH VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN-688561.`** - **`2 MOHANAN, AGED 76, S/O.LATE NARAYANAN, ILLIKKATTU HOUSE, MADUKAPPALLY PARAMBIL, THRIKKAKARA NORTH VILLAGE, PUTHUPALLIPPURAM KARA, KANAYANNUR TALUK, ERNAKULAM DISTRICT.`** - **`3 M/S. KERALA CARS PVT.LTD., (KAIRALI FORD), 508/A, ILLIKATTU BUILDING, KOONAMTHAI, EDAPPALLY, KOCHI-682024.`** - **`R1 BY ADVS.R.LAKSHMI NARAYAN`** - **`R.RANJANIE`** - **`R3 BY ADVS.RAHUL SASI NEETHU PREM`** ``` THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 21.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`RFA NO. 307 OF 2017 2`** ## **`JUDGMENT`** ``` The 1[st] defendant came up aggrieved by the decree of fixation of boundary and mandatory injunction with respect to plaint A schedule property - 10 cents (in measurement it was found lesser in extent). The plaintiff is the sister and the 1[st] defendant is the brother. 2[nd] defendant is the brother of their deceased father. Plaint C schedule is the adjoining property having an extent of 8 cents belonged to the 2[nd] defendant. There is no dispute that plaint A schedule- 10 cents of property and B schedule- 18 cents of property were obtained by the respective plaintiff and the 1[st] defendant under the very same document of title, Ext.A1 registered Will left out by their deceased father. It is also an admitted fact that a building construction was effected over the entire A and B schedule properties by submitting a joint application before the Municipality for getting permission. The signature found affixed as that of ``` ## **`RFA NO. 307 OF 2017 3`** ``` the plaintiff was disputed and denied by her. But, it contains signature of both the plaintiff and defendant. According to the defendant it was signed by his sister, the plaintiff as a joint applicant. ``` ``` 2. The Commissioner who visited the property had measured and located the property and found that the actual extent is lesser than that of what is stated in Ext.A1 registered Will. By that time some portions were acquired for widening the adjoining National Highway. It is the specific case of the first defendant that he had constructed the building over the property with the knowledge of the plaintiff and it was not objected at any point of time till its completion and inauguration. It was inaugurated on 12/03/2004. It is his further case that the prayer for mandatory injunction cannot be allowed unless there is a breach of an obligation and cannot be substituted in the place of a relief of recovery of possession and relied on the decisions rendered by a Division Bench of this court in Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRs ``` ## **`RFA NO. 307 OF 2017 4`** ``` and Others (2008 KHC 6249),Madhu Gupta v. K.T.Hassan Koya (2019 (5) KHC 42),Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan and Others (2014 (2) KHC 108) andAnjil Vellachi and Others v. Mamuni Bhaskaran alias Vattayil Bhaskaran (2009 (3) KHC 728). On the other hand the learned counsel for the respondent submitted that it is not at all necessary invariably in all cases to incorporate a prayer for recovery of possession, mere construction of a wall or a building or any portion of building abutting into the property may not be sufficient to draw ouster of possession of property to the extent wherein the construction was made with consent as alleged by the defendant and hence a mandatory injunction for its demolition would be sufficient and relied on the decision rendered by the Apex court in Bharat Bhushan Gupta v. Pratap Narain Verma & Anr. (Civil Appeal No.4577 of 2022). Before going into the abovesaid legal position, it is necessary to go into the merits of the case in hand and whether it would fall under the ``` ## **`RFA NO. 307 OF 2017 5`** ``` category of a possession claimed by the plaintiff or it is only a mere construction over the property of the plaintiff. There is no dispute with respect to the actual extent available after the acquisition or portions of property given for widening the National Highway. The actual extent is found to be 23.046 cents. The Commissioner deputed and the surveyor who assisted the Commissioner had located the property by adjusting the reduction of extent in reference to the extent of property given to the parties under Ext.A1, for which also there is no dispute. Hence, the plan prepared for fixing the boundary in between A and B schedule property can safely be accepted. ``` ``` 3. Then comes the question of construction over the property and whether it amounts to taking possession of portion of property on which the construction was made by the first defendant, for which necessarily the joint application submitted by him along with the plaintiff assumes importance. It is the specific case of the first defendant that he ``` ## **`RFA NO. 307 OF 2017 6`** ``` had submitted a joint application for getting building permission and it contains the signature of the plaintiff and the construction was made with valid consent. Necessarily, the case advanced by the defendant regarding dispossession of the plaintiff by the abovesaid construction cannot be sustained. Necessarily, when the property is partitioned or divided, the only liability that may arise is to compensate the first defendant for the amount expended for the construction of building either abutting into the property or the construction or any part thereof made over it. A mandatory injunction can also be permissible when there is breach of an obligation based on an understanding between the plaintiff and first defendant regarding the said construction which is well evident from the admission of the defendant that a joint application was submitted before the local authority for its construction. The joint application submitted and admission made by the defendant in that behalf would certainly be an indication with reference to the ``` ## **`RFA NO. 307 OF 2017 7`** ``` existence of an understanding between them for the construction of the building. ``` ``` 4. The case of family arrangement advanced by the plaintiff so far as the construction over the property is concerned cannot be sustained. The case that it was allotted to his share based on a family arrangement will not stand unless there is involvement of family property held in common. The case that another 72 cents which was sold by the mother at the alleged instance of plaintiff may not be sufficient to show any family arrangement. It has got its own improbability and inconsistency. As discussed earlier, unless there is involvement of family property held in common, there cannot be any family arrangement. Hence, the said contention cannot be sustained. ``` ``` 5. From the facts involved, instead of granting the relief of mandatory injunction for demolition of the building portion abutting into the property of the plaintiff, it is fit and proper to grant the value of improvements made over the property, for ``` ## **`RFA NO. 307 OF 2017 8`** ``` which a remand of the matter to the trial court cannot be avoided. The trial court shall issue a commission so as to assess the value of improvements by way of construction of building over the property of the plaintiff. ``` ``` In the result, the appeal will stand allowed in part, confirming the decree and judgment of the trial court fixing the boundary in between the plaint A and B schedule properties. But, the decree of mandatory injunction granted is hereby set aside. Instead of mandatory injunction, the parties are directed to take the respective portion of building situated in their property. It is further ordered that the matter will go back to the trial court for the purpose of incorporating a counter claim so as to fix the improvements made by the first defendant over the property of plaintiff by way of building construction. The trial court shall adjudicate whether it was constructed by the joint funds of both the parties or from the part of first defendant. The parties shall appear before the ``` ## **`RFA NO. 307 OF 2017 9`** ``` trial court on 30/01/2023 and the trial court shall dispose of the counter claim within a time schedule of four months from the date of the application for amendment. Application for amendment shall be submitted within one week from the date of appearance of the parties. ``` ``` Sd/- ``` ``` P.SOMARAJAN JUDGE ``` msp