Regular Second Appeal against dismissal of suit and allowance of counter claim in property dispute involving boundary wall construction. The High Court dismissed the appeal, holding no question of law arose as parties claimed existing boundaries and did not seek resurvey.
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 K.HARILAL
THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938
RSA.NO. 154 OF 2015 (B)
AGAINST THE JUDGMENT IN AS NO. 163 OF 2010 OF THE 1ST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM DATED 18-12-2014
AGAINST THE JUDGMENT IN OS NO.305 OF 2008 OF 2ND ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 22-12-2009
APPELLANT/APPELLANT/PLAINTIFF:
JUBARIYA BEEVI, AGED 48 YEARS, D/O.ASUMA BEEVI, TC NO.32/1163, ALL SAINTS, BEACH PO, THIRUVANANTHAPURAM.
BY ADVS.SRI.K.C.ELDHO SRI.JIJO THOMAS SRI.MALLENATHAN.M. SRI.ANEESH JAMES
RESPONDENTS/RESPONDENT/DEFENDANT:
RAMLA BEEVI, AGED 52 YEARS, D/O.ASUMA BEEVI, PUTHUVAL PUTHEN VEEDU, ALL SAINTS BEACH PO, PINCODE -695 102, THIRUVANANTHAPURAM.
R1 BY ADVS. SRI.G.P.SHINOD(CAVEATOR) SRI.RAM MOHAN. G SRI.MANU. V SRI.GOVIND PADMANABHAN SRI.AJITH G. ANJARLEKHAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DST
K. HARILAL, J.
= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 154 of 2015
- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2016
J U D G M E N T
This Regular Second Appeal is preferred by the
plaintiff/counter claim defendant in O.S. No.305 of 2008, on the files of the IInd Additional Munsiff's Court, Thiruvananthapuram. He was the unsuccessful appellant in A.S. No.163 of 2010 on the files of the Sub Court, Thiruvananthapuram also. The scope and extent of consideration in this Regular Second
Appeal is confined legality and correctness of the concurrent findings, whereby the courts below dismissed the Suit as well as the Appeal.
decree allowing the counter claim, granting permission to the defendant, to construct wall on
the boundary separating her property from that of
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the plaintiff without measuring both properties with survey plan is illegal and unsustainable. The title of the plaintiff over 2 cents of property in plaint 'A' schedule and title of the defendant over 2 cents in the counter claim 'A' plaint schedule property are not in dispute. But, according to the plaintiff, in addition to that 2 cents, she is in possession of one more cent on the western side of that 2 cents and she scheduled the entire 3 cents as the plaint schedule property. It is not disputed that both parties are holding Government land and they got title and possession over the property, by virtue of respective pattas issued in their favour under the Land Assignment Act, 1960. The cause of action in the suit is that the defendant had constructed basement of her building, encroaching a portion of excess property in possession of the
R.S.A. No. 154 of 2015
plaintiff. It is also alleged that the sunshade of
the building touches the western wall of the building in the property in the possession of the plaintiff. Hence, she prayed for a declaration of title and possession over the plaint schedule property, to direct the defendant to demolish the construction made by her trespassing into the plaint schedule property and touching the building, and to permit her to put up boundary wall separating the plaint schedule property with the defendant's property.
contending that even if there is any excess property, it is on the eastern side of the building in the plaint schedule property and she claimed that the plaintiff had constructed her house on the western boundary of her property and there is no
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property beyond the foundation in the plaintiff's
property. According to the defendant, the building constructed by her is within her property. On the
above premises, she filed a counter claim, seeking permission to construct boundary wall on the eastern side of the property and also to restrain the plaintiff from trespassing into her property.
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to encroach her property. So also the case of the
defendant.
relief sought for, the Commissioner has measured the property and submitted Exts.C1, C1(a), C2 and C2(a) reports and plans. After measuring the property on the basis of their title documents and boundary stones found in the property, the Commissioner has reported that the plaintiff is in possession of 2.964 cents of property in Survey No.2623/101C. In this context, it is pertinent to note that the claim of the appellant/plaintiff is that she is in possession of 3 cents of property. The commission report would further state that the western wall of the residential building of the plaintiff situates on the western boundary of the said 2.964 cents of property. In other words, the western wall of the
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residential building situates on the property for
which she claimed title and possession. On the basis of Ext.C2 report and Ext.C2(a) plan, the courts below concurrently found that the plaintiff is in possession of the property as claimed by her and the claim of the defendant that the excess property in the possession of the plaintiff is on the western side of the residential building cannot be accepted, in view of the commission report and plan.
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has been held above, none of the parties have prayed
for measuring their property on the basis of resurvey plan. Both parties have sought for permission to make the construction of a wall on the existing boundary. When there is no boundary, it is obligatory on the part of the Commissioner to measure the property to find out the boundary. But, when the parties have a case that there are boundaries in accordance with their title deed and the other party has trespassed upon the existing boundary, there is no need to fix the boundary of the property, on the basis of survey plan, particularly, when both parties prayed for permission to construct the walls on the existing boundary. The relief can be granted on the basis of the pleadings and the reliefs prayed for, in the
plaint as well as in the counter claim. The trial
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court after arriving at a finding that the wall of the building is seen constructed on the western side of 2.964 cents of property, it was found that even if there is any excess property that may be on the eastern or northern side of the property. In view of the reliefs sought for in plaint and in the counter claim, I do not find any illegality or impropriety in any of the findings, by which the court below rejected the suit and allowed the counter claim. No question of law arises for consideration in this Appeal.
This Regular Second Appeal is dismissed accordingly.
Sd/-
K. HARILAL,
DST
//True copy//
P.A. To Judge
2 issues framed by the court
Whether the trial courts erred in permitting construction of boundary walls without resorting to resurvey of the land.
Whether the lower courts committed any illegality in finding that the plaintiff's building wall lies within the boundaries of her property.
Jubariya Beevi
Ramla Beevi
K. Harilal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
