Second Appeals dismissed. The High Court held no substantial question of law arose regarding boundary fixation based on Taluk Surveyor's report or refusal of mandatory injunction, finding adequate evidence lacking for plaintiffs' claim.
Both Second Appeals dismissed. Boundary fixed as per Taluk Surveyor's plan; injunction refused.
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
FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931
RSA.NO. 719 OF 2008()
--------------------AS.92/2004 OF PRL.SUB COURT,IRINJALAKUDA OS.636/1994 OF ADDITIONAL MUNSIFF COURT IRINJALAKUDA
APPELLANTS – APPELLANTS - PLAINTIFFS
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1. PAULSOE, AGED 62, S/O. MUTTATH YOHANNAN, VELLIKULANGARA VILLAGE, MUKUNDAPURAM.
2. MARIYAMMA, AGED 53, W/O. PAULOSE, MUTTATH HOUSE, VELLIKULANGARA VILLAGE, MUKUNDAPURAM.
BY ADV. SRI.RENJITH THAMPAN SMT.P.R.REENA
RESPONDENT(S): RESPONDENTS 2 TO 6 LEGAL REPRESENTATIVES OF 1ST DEFENDANT
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1. CHINNAMMA, AGED 49, W/O. MEKATU MATHAI, VELLIKULANGARA VILLAGE, -DO-
2. JOISY, AGED 28, D/O. IST AND 2ND RESPONDENT, -DO-
3. BINSY, AGED 26, D/O. IST AND IIND RESPONDENT, -DO-
4. LINSY, AGED 23, D/O. IST AND 2ND RESPONDENT, VELLIKULANGARA VILLAGE.
5. ELENDOS, AGED 20, D/O. IST AND 2ND RESPONDENT, VELLIKULANGARA VILLAGE.
ADV. SRI.T.N.MANOJ FOR R1, 5
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 5.3.2010 ALONG WITH R.S.A. NO.118 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
= = = = = = = = = = = = = = = = = = = = = = = =
AND
R.S.A. NO.118 OF 2010
= = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of March, 2010
Respondent Nos.1 and 5 in these appeals appear through Advocate Shri T.N. Manoj. In R.S.A. No.719 of 2008 service of respondent Nos.2 to 4 has been declared complete. In R.S.A. No.118 of 2010 since respondent Nos.1 and 5 as legal representatives of deceased defendant are already on record and since in R.S.A. No.719 of 2008 the very same respondent Nos.2 to 4 remain absent it is not necessary to repeat notice to them in R.S.A. No.118 of 2010. Hence notice to them is dispensed with.
R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010
-: 2 :-
lateral support for the said Athirthimattom. Defendant in O.S. No.636 of 1994 filed O.S.No.82 of 1998 against the plaintiffs in the court of learned Additional Munsiff, Irinjalakuda for fixation of northern boundary of plaint B schedule therein (property of plaintiffs in O.S. No.636 of 1994) and for consequential injunction. Learned Munsiff treated O.S. No.636 of 1994 as the main suit and recorded evidence in that case. Parties are referred to as plaintiffs and defendant as referred to in O.S. No.636 of 1994 for convenience.
R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010
-: 3 :-
schedule in O.S.No.82 of 1998) situated on the north of their property. It is also their contention that these properties are lying slope from north to south and to prevent soil erosion Mattoms were constructed by the predecessors of plaintiffs. It is further case of plaintiffs that defendant attempted to demolish the said Mattoms and excavated the land which resulted in loss of lateral support on the side of the property of plaintiffs. Defendant contended that the 'Athirthimattom' referred to in the plaint is not the boundary of the property of the plaintiffs and there is a thodu and a mud bund which separated the properties of plaintiffs and defendant. Edamattom referred to in the plaint belonged to the defendant. He stated that plaint B schedule in O.S.No.636 of 1994 (which is plaint A schedule in O.S.No.82 of 1998) belonged to him which is situated at a higher level from the property of the plaintiffs and plaintiffs tried to demolish the boundary Mattom. Learned Munsiff came to the conclusion that boundary between the properties of the parties could be fixed along the red line shown in Ext.C4(a). Accordingly relief was granted to both the parties. But the prayer of plaintiffs for mandatory injunction to restore the Mattoms which were allegedly destroyed by the defendant was refused for the reason that there
R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010
-: 4 :-
was no reliable evidence to show that the said Mattoms were constructed by the predecessors of plaintiffs for maintenance of their property. First appellate court has confirmed judgment and decree and hence these Second Appeals raising by way of substantial questions of law whether finding of the courts below that plaintiffs are not entitled to get mandatory injunction prayed for is legally correct and whether the finding regarding respective possession of contestants is legally sustainable. Learned counsel for plaintiffs (defendants in O.S.No.82 of 1998), appellants in these Second Appeals would contend that the measurement made by the Taluk Surveyor and Village Officer cannot be accepted and hence courts below ought not have accepted Exts.C4(a) for fixation of boundary. It is also contended that even as per the measurement made by the Village Officer (Ext.C4(b) defendant has been in possession of the property more than his entitlement as per the document of title produced by him and in such a situation without measurement of properties with reference to all documents of title boundary between the properties ought not have been fixed. Further contention is that while seeking fixation of boundary what the defendant sought is not fixation of southern boundary of his
R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010
-: 5 :-
property but fixation of northern boundary of property of the plaintiffs. This approach according to the learned counsel cannot be permitted in a suit for fixation of boundary. As to the refusal of courts below to grant mandatory injunction it is contended that there is sufficient evidence on record to show that it is after the order of injunction was passed by the trial court as reported by the Advocate Commissioner also that the Mattoms were destroyed by the defendant. It is contended by learned counsel for defendant that it is taking into account the nature and terrain of the land and the fact that measurement of the properties was not mentioned in the documents of title of both parties that measurement was made with reference to the actual possession of the properties by the parties since there was no other manner of possibility to measure the properties. According to the learned counsel Ext.C4(a), report of the Taluk Surveyor with reference to possession of the properties and other relevant documents would show that plaintiffs were in possession of land less than their actual entitlement as per their document of title. As such there is no reason for plaintiffs to be aggrieved about the boundary fixed as per Ext.C4(a). Learned counsel for defendant supported the judgment and decree of the
R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010
-: 6 :-
courts below on all counts.
R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010
-: 7 :-
court has confirmed.
R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010
-: 8 :-
Surveyor as seen from Ext.C4(a). In the circumstances trial court is justified in fixing the boundary between the properties along the red line marked in Ext.C4(a). That finding does not involve any substantial question of law requiring interference by this Court.
R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010
-: 9 :-
what the Commissioner has reported in Ext.C1 is that on the eastern portion of Edamattom beyond the disputed properties there was a demolition but owners of the property at that portion have not come up with any grievance regarding the demolition. Learned Munsiff also came to the conclusion that evidence on record is insufficient to hold that the plaintiffs or their predecessors had been maintaining the disputed Athirthimattom. It is in the above circumstances that prayer for mandatory injunction was not granted. On the facts and circumstances brought out I do not find that it involved a substantial question of law so that this Court should interfere with the discretionary jurisdiction exercised by the learned Munsiff and as confirmed by the first appellate court.
R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010
based on boundary demarcation made by the Taluk Surveyor in Ext.C4(a) along the red line. I make it clear that plaintiffs will be entitled to the property on the south of the boundary mark in red line in Ext.C4(a) while entitlement of defendant will be for the property on the north of the said boundary mark in red line.
Subject to the observation made above, both the Second Appeals are dismissed in limine.
Interlocutory Application Nos.1741 & 1742 of 2008 in R.S.A. No.719 of 2008 and 281 & 282 of 2010 in R.S.A. No.118 of 2010 shall stand closed.
THOMAS P.JOSEPH, JUDGE.
vsv
3 issues framed by the court
Whether there are substantial questions of law regarding the fixation of boundary and refusal of mandatory injunction warranting interference by this Court.
Whether the measurement made by the Taluk Surveyor is legally sustainable for fixing the boundary between the properties.
Whether the courts below erred in refusing the mandatory injunction for restoration of the destroyed Mattom.
PAULSOE
MARIYAMMA
CHINNAMMA
JOISY
BINSY
LINSY
THOMAS P.JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
