Regular second appeal against a decree dismissing a suit for fixation of boundary and prohibitory injunction. The High Court dismissed the appeal, holding that the appellant failed to prove title, and that a mere suit for boundary fixation is not maintainable without a declaration of title.
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 22ND DAY OF JUNE 2012/1ST ASHADHA 1934
RSA.NO. 3 OF 2012 ()
AS.2/2010 OF SUB COURT, PERUMBAVOOR O.S. NO.231 OF 2007, MUNSIFF'S COURT, PERUMBAVOOR
APPELLANT(S)/APPELLANT/PLAINTIFF:
VARGHESE, AGED 46 YEARS
S/O.OUSEPH,PUNNOORPPILLY HOUSE, NEDUNGAPARA KARA VENGOOR EAST VILLAGE.
BY ADVS.SRI.P.BENJAMIN PAUL SRI.SAJI VARGHESE KAKKATTUMATTATHIL
RESPONDENTS/RESPONDENTS/PLAINTIFF:
1. BABU NAMBOOTHIRI , AGED 44 YEARS S/O.KOCHU NARAYANAN NAMBOOTHIRI, VACKATTMANAYIL POOJARI,THURUTHY PO MUDAKUZHA WEST VILLAGE 683 546.
2. VIJAYAMMA, AGED 64 YEARS W/O.PADMANABHAN NAIR, SREYASS,NEDUNGAPARA KARA VENGOOR WEST VILLAGE 683 546
3. RAJU,, AGED 44 YEARS S/O.VIJAYAMMA,DO. DO.
BY ADV. SRI.S.RENJITH (CAVEATOR) BY ADV. SRI.S. RENJITH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
==================================== R.S.A. No.3 of 2012
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Dated this the 22nd day of June, 2012
J U D G M E N T
Heard. Admit.
(i) Is not the principle of possession follows title applicable to the facts and circumstances of the case?
(ii) Is it not the resurvey records and plan conclusive proof regarding boundary and possession of land between parties unless the same is altered or modified by the collector or the civil court by a decree as per Section 16 of the Kerala Survey and Boundaries Act, 1961?
R.S.A. No.3 of 2012
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suit property, five cents in Old Survey No.66/16C, 66/4/1 and R.S. Nos.55/33 and 55/34 as per Ext.A1, settlement deed No.2859 of 2007 executed by his father. According to the appellant property of respondents 2 and 3 are situated on the northern side. There is no boundary between the properties and hence respondents are making attempt to trespass into the suit property. Hence the prayer for fixation of boundary and prohibitory injunction.
R.S.A. No.3 of 2012
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66/5B and 66/5C as per document No.5091 of 1982 (Ext.B2). That property was settled in favour of the appellant and his brother as per document No.3892 of 1996 (Ext.A2). Thus the entire property belonging to the father was exhausted by the said settlement.
R.S.A. No.3 of 2012
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Sy.No.66/16 in favour of his wife (great grand mother of the appellant). It is submitted by the learned counsel that the 5 cents described in the suit property and referred to in Ext.A5 has its origin from the 36¼ cents in Old Sy. No.66/16 referred to in Annexure-A1 document. Apart from the fact that the 5 cents in Old Sy. No.66/16 is registered in the name of the father of appellant, after the re-survey the said 5 cents in Old Sy.No.66/16 continues to be registered in the name of the appellant as R.S. Nos.55/33 and 55/34. Learned counsel requested that in the circumstances if this Court is not inclined to grant relief to the appellant based on Annexure-A1 document, the case may be remitted to the trial court with opportunity to the appellant to prove Annexure-A1, document. Learned counsel has also invited my attention to Ext.B1 to show that attempt is being made by the respondents to trespass into the suit property describing it as lying adjacent to the property which belonged to the father of appellant.
R.S.A. No.3 of 2012
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nor in the first appellate court there was any claim based on Annexure-A1, which is now pressed into service. According to the learned counsel, having regard to the facts and circumstances of the case this Court may not pronounce verdict based on Annexure-A1. It is also argued that a remand of the case is not called for.
R.S.A. No.3 of 2012
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Ext.A1, settlement deed No.2859 of 2007. A further fact which the courts below noticed is that in Ext.A1 there is no reference to Old Sy. No.66/5A, 66/5B and 66/5C. In that view, merely based on Ext.A5, claim of the appellant cannot be accepted. In the circumstances finding of the trial and first appellate courts that appellant has failed to prove title and possession as per his claim based on Ext.A1 does not require interference. Having regard to the nature of the contentions it was necessary that appellant sought a declaration of the title he claimed over the property.
R.S.A. No.3 of 2012
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omission in tracing title as to the 5 cents to Ext.A1 document.
R.S.A. No.3 of 2012
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Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv
3 issues framed by the court
Whether the principle of possession following title applies to the facts of the case?
Whether the suit is maintainable for fixation of boundary without a prayer for declaration of title?
Whether the appellant's claim based on the settlement deed succeeds?
VARGHESE
BABU NAMBOOTHIRI
VIJAYAMMA
RAJU
THOMAS P. JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
