The High Court dismissed the second appeal in a property dispute. The bench held that no substantial question of law arose regarding the appellant's capacity to appeal, the recognition of title documents, or the grant of injunction for encroachment following suit filing.
Second appeal dismissed in limine with no substantial question of law found involved.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931
RSA.No. 242 of 2010()
--------------------AS.91/2001 of SUB COURT,NEYYATTINKARA OS.848/1994 of I ADDL.MUNSIFF COURT.,NEYYATTINKARA
APPELLANT/APPELLANT/3RD DEFENDANT
A.VIJAYAN, S/O. ADICHAN NADAR, AGED 53, PAINKARAVILA ROADARIKATHU VEEDU, ARAYOOR DESOM, CHENKAL VILLAGE, NEYYATTINKARA TALUK.
BY ADV. SRI.B.KRISHNA MANI
RESPONDENTS/RESPONDENTS 2 AND 3/DEFENDANTS 1 AND 2 /ADDITIONAL RESPONDENTS 4 TO 9/LEGAL HEIRS OF THE PLAINTIFF:
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P JOSEPH, J.
R.S.A.No.242 of 2010
Dated this 03rd day of March, 2010
JUDGMENT
The second appeal arises from judgment and decree of learned Sub Judge, Neyyattinkara in A.S.No.91 of 2001 confirming judgment and decree of learned Additional Munsiff-1, Neyyattinkara in O.S.No.848 of 1994. Parties are referred to as plaintiff and defendants as in the trial court for convenience.
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also for putting up boundary. After filing of the suit, plaint was amended alleging that defendants trespassed into a portion of plaint A schedule and put up a building. That portion is described as plaint B schedule and the building is described as plaint D schedule. Defendant Nos. 1 to 3 contended while admitting that defendant Nos.1 and 2 acquired title and possession of 5 cents as per Ext.B1 out of the property belonging to the plaintiff as per Ext.A1, that day also purchased 4.5 cents on its east from Daveed George as per sale deed No.651/87 and thus they are entitled to and is in possession of 9.5 cents altogether which lie contiguous. It is while so that defendant Nos.1 and 2 sold a portion of the said property to defendant No.3 as per sale deed No.2128/1987 (Ext.B2). They denied that there was any attempt to trespass into the property of plaintiff. Learned Munsiff found from the evidence that portions of property belonging to the plaintiff and defendants were taken for widening the road sometime in the year 1988 as the evidence revealed and excluding that portion and the portion sold to defendant Nos.1 and 2, plaintiff is entitled to and is in possession of the plot marked QRST in Ext.C1(a), 3.599 cents while entitlement of the defendants is for plot marked as SLMT, 2.106 cents. Trial court came to the conclusion that D schedule structure was put up by defendants encroaching into property belonging to the plaintiff and accordingly directed defendants to remove that portion of the
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structure. Trial court also directed that boundary of the property belonging to the plaintiff has to be fixed along TS-RS lines shown in Ext.C1(a). Defendant Nos.1 and 2 did not challenge judgment and decree obviously because property covered by Ext.B1 had already been assigned to defendant No.3 as per Ext.B2. Wife of defendant No.3 filed an appeal before the first appellate court with an application (I.A.No.944 of 2009) to appoint her as next friend of defendant No.3/appellant on the allegation that defendant No.3/appellant is suffering from insanity from the year 1990 onwards. That application was opposed by the plaintiff. Though no separate enquiry was conducted by the learned Sub Judge on I.A.No.944 of 2009, that matter also enquired into in the course of hearing the appeal and learned Sub Judge found that there was nothing on record to show that defendant No.3 was suffering form any mental unsoundness which prevented him from filing the appeal. The appeal was found to be not maintainable. Learned Sub Judge proceeded to dispose of the appeal on merit, confirmed finding of learned Munsiff and dismissed the appeal. That is under challenge in the second appeal raising by way of substantial questions of law whether first appellate court was justified in holding that wife of the appellant could not be allowed to proceed with the appeal as next friend and whether courts below were justified in declaring title of the plaintiff without even a discussion of the relevant
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documents pertaining to title claimed by the plaintiff and granting relief accordingly. Learned counsel has contended that at the time appeal was preferred before the first appellate court defendant No.3 was suffering from mental unsoundness and hence his wife was competent to file the appeal representing him as next friend. It is also the argument of learned counsel that this being a suit based on title, plaintiff has to succeed on the strength of his title and any amount of admission made by the defendants cannot confer title on plaintiffs. Learned counsel has placed reliance on the decisions in Ambika Prasad Thakur & Ors. Vs. Ram Ikbal Rai (AIR 1966 SC 605), and Kunhali Umma Vs. Rabi Umma (1997 (2) KLT 936) .
3. So far as the issue regarding wife of the appellant/defendant No.3 preferring the appeal before the first appellate court is concerned, though learned Sub Judge observed that appeal at the instance of the wife is not maintainable for lack of evidence regarding the alleged mental unsoundness of defendant No.3, learned Sub Judge proceed to decide the appeal on merit. It is that judgment and decree which are under challenge in the second appeal filed by defendant No.3 directly. Therefore it is not as if defendant No.3 is disowning the appeal filed by his wife on his behalf before the first appellate court and he cannot also be heard to say that the appeal before the first appellate court was not competent. So far
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as mental unsoundness of defendant No.3 pleaded by his wife before the first appellate court is concerned, claim is that defendant No.3 was insane from 1990 onwards but in the trial court nobody had such a contention. It has come in evidence as discussed in the judgment under challenge that defendant No.1 is the direct brother of defendant No.3 and defendant No.2 is the wife of defendant No.1 and all of them took joint defence in the trial court by filing a joint written statement. Learned Sub Judge has also stated that defendant No.3 was vehemently contesting the suit and there was no mention, at any point of time that he was suffering from mental infirmity so that he was incapable of protecting his interest. No evidence was also produced in by the wife of appellant/defendant No.3 in support of I.A.No.944 of 2001. True Order 32 Rule 15 of the Code of Civil Procedure (for short, “the Code”) requires an enquiry to be conducted when a party before court is suspected to have mental infirmity making it difficult for such party to protect his interests. But no particular form of enquiry is prescribed. Even perusal of affidavit or medical certificate if any, produced could amount to enquiry as contemplated under Order 32 Rule 15 of the Code. The first appellate court has conducted an enquiry as to the alleged mental infirmity of defendant No.3 and come to the conclusion that the allegation is not established. That finding is justified by the fact that his appeal is filed by defendant No.3 directly.
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or widening of the road and the 5 cents sold to defendant Nos.1 and 2 as per Ext.B1). Similarly entitlement of defendant No.3, as per Exts.B1 and B2 excluding the portion taken for the road is for plot SLMT measuring 2.106 cents. These matters have been discussed by the learned Munsiff in his judgment. A detailed discussion regarding the title and possession was not made but that is not fatal in view of the facts, evidence and circumstances stated above and referred to in the judgment of learned Munsiff including that there was no dispute regarding title of the plaintiff as per Ext.A1. It is not a case where the courts below have merely relied on the admission of defendants in favour of title claimed by the plaintiff. The decision relied on by learned counsel only said that admission cannot confer title. That proposition cannot be disputed also. But one must bear in mind that admission is the best form of evidence. Plaintiff is not merely relying on the admission if any made by the defendants as to his case and instead, produced documents and gave oral evidence in that line. Advocate Commissioner and Taluk Surveyor identified the properties with reference to the relevant title deeds. I also find on going through the memorandum of first appeal preferred by or on behalf of the appellant before the first appellate court that no contention was raised about lack of detailed discussion in the judgment of trial court. In such a situation, I am not inclined to accept contention raised by learned
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counsel for appellant that there was no discussion regarding title claimed by the plaintiff and therefore, judgments under challenge should fall to the ground. I must also bear in mind that it is based on the title claimed by plaintiff and proved by Exts.A1, C1 and C1(a) that trial court granted relief in favour of the plaintiff and that was confirmed by the first appellate court. In my view no substantial question of law is involved in the above circumstance.
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counsel.
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schedule and that in my view, and in the light of the facts and evidence on record, is legal and proper.
Resultantly the second appeal is dismissed in limine.
THOMAS P JOSEPH, JUDGE
Sbna/
3 issues framed by the court
Whether the wife of the appellant was competent to file the appeal as next friend due to alleged mental unsoundness of the appellant.
Whether the courts below erred in declaring the plaintiff's title without detailed discussion of relevant documents.
Whether the grant of mandatory injunction and fixation of boundary despite alleged encroachment after suit institution was legal.
Colour shows how this judgement treated each authority
Ambika Prasad Thakur & Ors. Vs. Ram Ikbal RaiReferred¶37
Ambika Prasad Thakur & Ors. Vs. Ram Ikbal Rai (AIR 1966 SC 605) · Who else cites this
Kunhali Umma Vs. Rabi UmmaReferred¶37
Kunhali Umma Vs. Rabi Umma (1997 (2) KLT 936)
1 provisions across 1 enactments
A. Vijayan
Sukumaran
Santha
Vijayan
Rajan
Jayaraj
Thomas P. Joseph
As recorded by the court registry
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