Remanded

B.Nirmala v. P.Shylaja

Kerala HC13 Dec 2013RSA/152/2013

Case brief

AI extract

What is this about?

An appeal against a judgment decreeing recovery of possession and injunction. The High Court set aside the lower appellate court's decree passed after an amendment to the plaint allowing additional land claims without granting the appellant opportunity to file an additional written statement. The matter was remanded to enable the appellant to respond to the amendment. The trial court had previousl

What did the court decide?

Judgment and decree of lower appellate court set aside; matter remanded to enable appellant to file additional written statement.

B.Nirmala Vs P.Shylaja — Property and Title | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

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FRIDAY, THE 13TH DAY OF DECEMBER 2013/22ND AGRAHAYANA, 1935

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RSA.No. 152 of 2013 ( )

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AS 273/2007 of ADDL. DISTRICT COURT-1, THIRUVANANTHAPURAM OS 1826/1999 of III ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM

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APPELLANT(S)/RESPONDENT/DEFENDANT :-

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B.NIRMALA, AGED 56 YEARS, RESIDING AT VELIKAKATHU VEEDU, STATION KADAVU KAZHAKOOTTOM, THIRUVANANTHAPURAM.

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BY ADVS.SRI.M.DINESH

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SRI.SAJU.S.A

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RESPONDENT(S)/APPELLANTS/PLAINTIFFS :-

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1. P.SHYLAJA, D/O.SUNDARESAN, RESIDING AT HOUSE NO.307, GANDHI NAGAR, 3RD STREET, VAZHAUTHACAUD THIRUVANANTHAPURAM FROM VELIKAKATHU VEEDU STATIONKADAVU, KAZHAKKUTTOM.

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2. HEROZ SUNDER, S/O.LATE S.SUNDARESAN, RESIDING AT HOUSE NO.307 GANDHI NAGAR, 3RD STREET, VAZHAUTHACAUD THIRUVANANTHAPURAM FROM VELIKAKATHU VEEDU STATIONKADAVU, KAZHAKKUTTOM.

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R1 & R2 BY ADV. SMT.P.DEEPTHI

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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jvt

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N.K.BALAKRISHNAN, J.

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R.S.A. No.152 of 2013

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--------------------------------Dated this the 13^th day of December 2013

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J U D G M E N T

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The defendant is the appellant. The suit was for declaration of title and recovery of possession of the plaint 'B' schedule property. The trial court dismissed the suit holding that the plaintiffs could not prove their title. A counter claim was filed by the appellant. The suit and the counter claim were dismissed by the trial court. The plaintiffs filed appeal. A Cross Objection was filed by the defendant challenging the dismissal of the counter claim. As per a common judgment passed by the lower appellate court, the appeal filed by the plaintiffs was allowed granting recovery of possession of plaint 'B' schedule property. A prohibitory injunction was also granted restraining the defendant/appellant herein from making any construction or modification in the plaint schedule property. The Cross Appeal was dismissed.

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R.S.A. No.152 of 2013

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The following substantial questions of law have

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been framed in this RSA :-

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(i) Is it permissible for the lower appellate court to allow the appeal after allowing an application for amendment of the plaint and without remanding the matter to the trial court in order to enable the parties to adduce additional pleadings and evidence ?

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(ii) Is it permissible for the lower appellate court to rely on a report prepared by the Advocate Commissioner which was set aside by the trial court itself and a fresh report was called for ?

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(iii) Is it permissible for a court to grant a decree in respect of a schedule of properties especially when the Advocate Commissioner himself had reported that the properties are non identifiable ?

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Ext.C2(a) is the commissioner's plan where

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different plots claimed by the plaintiffs and defendant are separately shown. Admittedly, the eastern most plot marked in rose colour as 'HIJKLMRTH' is the property that belongs to the first plaintiff. As per the title deed she was entitled to have only 14 cents. The plot 'ABCOPQ' is admittedly in the

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R.S.A. No.152 of 2013

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possession of the defendant/appellant. The measurement of that plot is shown in the plaint as 13.880 cents. A road was formed in between; that is marked as 'CDRMHOC'.

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It is submitted by the learned Senior Counsel appearing for the appellant that the trial court has appreciated the evidence in the correct perspective and so, the lower appellate court was not justified in reversing the same and granting a decree in favour of the plaintiffs especially when no convincing evidence was adduced by the plaintiffs to get a decree for declaration in respect of the land which was in excess of what was covered by Exts.A1 to A3 and to grant recovery of possession in favour of the plaintiffs.

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The dispute actually centers around the plot 'SFGHTR', which is the blue shaded plot lying to the east of the road. There is another small plot marked in orange colour as 'DEFS'. There was an earlier suit O.S.No.1634/94 filed by the appellant against a third party for injunction when the latter tried to trespass upon the appellant's

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R.S.A. No.152 of 2013

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property. That suit was ultimately compromised as per which southern most orange coloured plot 'DEFS' was left to be used by the defendant therein as a way. Ext.D8 is the copy of the plaint in that suit. It is submitted by the learned counsel for the appellant that the finding in that case would prove that the disputed blue shaded plot shown in Ext.C2(a) was possessed by the appellant herein.

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The trial court found that going by the measurements in Exts.A1 to A3, the title deeds relied upon by the plaintiffs, only rose coloured plot lying to the east of the road as 'HIJKLMRTH' alone is the property over which the plaintiffs have title. Even after the amendment, the plaint was not amended. The plaintiffs proceeded with the suit without effecting any amendment or showing that the property in respect of which relief was claimed by the plaintiffs took in the plot 'RTHGFSR' and the southern most orange coloured plot 'DEFS'. It was specifically noted by the Advocate Commissioner in Ext.C2(a) plan that the plot 'DEFS' was the plot given to the defendant in

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R.S.A. No.152 of 2013

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O.S.No.1634/94. Its extent was shown as 760 sq.links corresponding to 30.30 sqare metres. The blue shaded plot lying to the east of the suit property which is the center of dispute was specifically shown as the property held by the appellant herein. It is true that the plaintiffs herein were not parties to O.S.No.1634/94. But the learned Senior Counsel for the appellant would submit that since that suit was filed in the year 1994 about 5 years prior to the filing of the present suit and since such a compromise was entered into at an undisputed point of time, it cannot be said that the defendant/appellant was not in possession of the aforesaid blue shaded plot lying to the east of the road. The extent of that plot was found to be 3.920 cents (1 Are 58.7 sq.metres).

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The plot admittedly in the possession of the defendant lying to the west of the road, demarcated in the plan in blue colour as 'ABCOPQ', was found to be measuring 13.880 cents.

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It could be seen that the total extent of the property as per Exts.A1 to A3 is only 15 cents. The

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R.S.A. No.152 of 2013

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plaintiffs' wanted to contend that the total extent of the property is 18.790 cents. It is important to note that during the pendency of the appeal, an application was filed by the plaintiffs as I.A.No.1770/2009 for causing amendment to the schedule of plaint showing the extent of 'A' schedule property as 18.790 cents instead of 15 cents as it originally stood. An objection statement was filed by the appellant herein. That application was disposed of by the learned Appellate Judge on 1.10.2009. But no such entry is seen in the 'B' diary maintained by that court. It is also pertinent to note that though the order shows that the amendment was to be carried out by 4.10.2009, no order is seen made nor does the 'B' diary show that any order was passed by the learned District Judge granting opportunity to the defendant to file additional written statement in the matter. First of all whether such an amendment was allowable or not was a seriously disputed question. In spite of that fact the lower appellate court was inclined to allow that petition but did not give any opportunity to file additional written statement

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R.S.A. No.152 of 2013

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to dispute the plaint claim. It was allowed as if the plaintiffs have got title in respect of the additional 3.790 cents of land which was added along with the property originally shown. The whole procedure adopted by the trial court is unjust and has caused serious prejudice to the appellant, the learned Senior Counsel submits.

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Learned counsel for the appellant/defendant would submit that the property which the defendant is entitled to possess as per her title deed is available on the western side of the road and so, the respondents cannot claim any land lying to the east of the road. It is further submitted that the courts below have analysed the evidence with respect to those aspects in detail and found that the plaintiffs/respondents are entitled to get a decree for recovery of possession of plaint 'B' schedule property. Since there is a concurrent finding with regard to the same, there is no reason to upset the same, it is further argued. It has already been found that the defendant/appellant was in possession of the property lying to the east of the road as

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R.S.A. No.152 of 2013

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well. As per the compromise entered into in the earlier suit, the southern most rose coloured portion was allowed to be used by the neighbouring owner as a pathway. In fact, there was a house situated in the blue shaded portion lying to the east of the road, if so, unless the plaintiffs prove a better title, the defendant who was in settled possession of the property cannot be directed to surrender possession of that property to the plaintiff.

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It is submitted by the learned Senior Counsel appearing for the appellant that the decree granted by the lower appellate court cannot be sustained for, there should be a definite pleading and evidence to prove the plaintiff's title in respect of the disputed portion. It is further submitted that since the trial court has rendered a finding against the plaintiffs and dismissed the suit, the lower appellate court should not have proceeded in a casual way upsetting the finding when the low is settled that in a suit for recovery of possession on the strength of title the plaintiffs have to prove their title to the suit property and

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R.S.A. No.152 of 2013

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they cannot bank upon the weakness if any in the defendant's case. Going by the description and the extent of the property covered by the plaintiffs' title deed, the plaintiffs are entitled to get only the north-eastern plot marked in light rose colour (HIJKLMRTH). Since that was the case set up by the plaintiffs in the suit, by causing amendment to the plaint and that too, without giving opportunity to the defendant/appellant to file additional written statement, the lower appellate court should not have granted a decree for recovery of possession.

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Learned counsel for the appellant submits that since there was delay in filing the appeal, no interim stay of execution of the decree could be obtained from this Court. Taking advantage of that fact, the respondents took delivery of the property and the residential building situated therein was razed to the ground.

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As stated earlier, the judgment of the lower appellate court cannot be sustained for the reason that the decree was passed without affording opportunity to the

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R.S.A. No.152 of 2013

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appellant herein to file additional written statement to the amendment which was allowed at the fag end of the appeal. Hence, the judgment and decree passed by the lower appellate court are set aside and the matter is remanded to the lower appellate court so as to enable the appellant herein to file additional written statement to the amendment effected in the plaint. After hearing both sides, the learned Addl. District Judge will dispose of the appeal at the earliest. The lower appellate court is given liberty to pass appropriate order/judgment in the appeal. The parties will mark their appearance before the lower appellate court on 16.1.2014.

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This RSA is disposed of accordingly.

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Sd/N.K.BALAKRISHNAN, JUDGE.

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//True Copy//

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P.A. To Judge

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Jvt

B.Nirmala v. P.Shylaja

Case brief

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B.Nirmala v. P.Shylaja

Case brief

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