Partly allowed

Abraham v. Joseph

Kerala HC16 Jan 2017RSA/1203/2005

Case brief

AI extract

What is this about?

In a second appeal regarding boundary disputes, the Court held that a water channel (chal) forms part of the plaintiff's property. While the lower appellate court erred in disregarding the trial court's findings on title and easement by failing to admit plaintiff's ownership, the appeal on mandatory injunction for encroachment was dismissed due to lack of independent evidence.

What did the court decide?

Permanent prohibitory injunction restraining defendants from trespassing plaintiff's property or using the channel as a passage; mandatory injunction for restoration of encroached portion rejected.

Abraham Vs Joseph — Partition | Kerala HC (2017)

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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 K.HARILAL

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MONDAY, THE 16TH DAY OF JANUARY 2017/26TH POUSHA, 1938

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RSA.No. 1203 of 2005 (B)

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AGAINST THE JUDGMENT & DECREE DATED 28-02-2003 IN AS 6/1999 of I ADDL.DISTRICT COURT, THRISSUR

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AGAINST THE JUDGMENT & DECREE DATED 30-11-1998 IN OS 438/1996 of MUNSIFF'S COURT,VADAKKANCHERRY

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APPELLANT/RESPONDENT/PLAINTIFF::

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ABRAHAM, S/O. MANAYIDAYIL MATHEW, KEERANCHIRA DESOM, MANALITHARA VILLAGE, TALAPPILLY TALUK.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT(S)/APPELLANTS 1 AND 2 AND ADDITIONAL APPELLATS 3 TO 10/DEFENDANTS 1 AND 2 AND LRS OF THE FIRST DEFENDANT:

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1. JOSEPH, (DIED).

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S/O.ULLATTUKUZHIYIL KURUVILA KEERANCHERY DESOM, MANALITHRA VILLAGE, TALAPPILLY TALUK

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2. JOY, S/O. ULLATTUKUZHIYIL JOSEPH, KERANCHERY DESOM, MANALITHARA VILLAGE, TALAPPILLY TALUK.

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3. SARAMMA, W/O. LATE JOSEPH, ULLATTUKUZHIYIL HOUSE, KEERANCHERY DESOM, MANALITHARA VILLAGE, TALAPPILLY TALUK.

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4. MARY, D/O. ULLATTUKUZHIYIL JOSEPH KEERANCHERY DESOM, MANALITHARA VILLAGE, TALAPPILLY TALUK.

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5. ANNAMMA, D/O. ULLATTUKUZHIYIL JOSEPH KEERANCHERY DESOM, MANALITHARA VILLAGE, TALAPPILLY TALUK.

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...2/-

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RSA.No. 1203 of 2005 (B) 2

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6. KUNJUVARKEY, S/O. ULLATTUKUZHIYIL JOSEPH, KEERANCHERY DESOM, MANALITHARAV VILLAGE, TALAPPILLY TALUK.

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7. REJI, S/O. ULLATTUKUZHIYIL JOSEPH, KEERANCHERY DESOM, MANALITHARA VILLAGE, TALAPPILLY TALUK.

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8. LISSY, D/O. ULLATTUKUZHIYIL JOSEPH, KEERANCHERY DESOM, MANALITHARA VILLAGE, TALAPPILLY TALUK.

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9. BENNY, S/O. ULLATTUKUZHIYIL JOSEPH KEERANCHERY DESOM, MANALITHARA VILLAGE, TALAPPILLY TALUK.

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R2 TO R8 BY ADV. SRI.P.BHASKARAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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R.S.A. No. 1203 of 2005

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Dated this the 16^th day of January, 2017

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JUDGMENT

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~ ~ ~ ~ ~ ~ ~

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The appellant is the plaintiff in O.S. No.438/1996 of

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the Munsiff Court, Wadakanchery. The aforesaid suit was one for injunction; both prohibitory as well as mandatory. Though the suit was decreed, as prayed for, in Appeal Suit No.6/1999 of the I Additional District Court, Thrissur, the lower appellate court has reversed the findings of the trial court and dismissed the suit. Thus, the divergent findings, whereby the trial court decreed the suit and the lower appellate court has allowed the Appeal have come up before this Court, for examination of legality and correctness of the divergent findings of the courts below.

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Heard the learned counsel for the appellant and the learned counsel for the respondents.

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It is the case of the plaintiff that plaint 'A'

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RSA.1203/05 :2:

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schedule properties having an extent of 2 Acres and 16.5 cents belongs to the plaintiff, by virtue of Ext.A1 settlement deed and Exts.A2 and A3 sale deeds. Further, plaint 'B' schedule property having an extent of 550 feet length, 1½ feet depth and 2¼ feet width also forms a part of plaint 'A' schedule property and plaint 'B' schedule property lies as a chal. The said chal was constructed by the plaintiff and defendants have no right over the chal. It is further alleged that the 1^st defendant, who owns and possess the property that lies on the southern side of 'B' schedule chal encroached some portion of 'B' schedule property, which is scheduled as 'C' schedule and has done certain spade work for widening the width of the 'B' schedule chal. The property lies on the southern side of plaint 'B' schedule belongs to the 1^st defendant and the property that lies on the north-western side of plaint 'A' schedule property belongs to the 2^nd defendant, who is none other than the son of the 1^st defendant. Neither the 1^st defendant nor the 2^nd defendant has any kind of right over plaint 'B' schedule

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RSA.1203/05 :3:

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chal. But, they have made an attempt to widen plaint 'B' schedule chal for their egress and ingress to their properties. On the aforesaid apprehension, the suit was filed, seeking prohibitory injunction, restraining the defendants from trespassing into plaint schedule property or from altering the lie of 'B' schedule chal, so as to convert it as a road to their property and for a mandatory injunction, directing the defendants to restore 'C' schedule property into its original position.

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The defendants jointly contended in their written statement that 'B' schedule lies separately, as a passage and water chal for the last several years. According to them, 'B' schedule does not belong to the plaintiff. Further, he admitted that the property that lies on the southern side of 'B' schedule belongs to the 1^st defendant. But, at the same time, it is further contended that plaint 'B' schedule does not form a part of plaint 'A' schedule property of the plaintiff. It is further claimed that the 1^st defendant and his predecessors-in-interest have been using

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RSA.1203/05 :4:

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plaint 'B' schedule property, as a pathway to their residential building and defendants have every right to use plaint 'B' schedule, as a pathway to their property. They denied the existence of an alternative pathway through the southern side of the 1^st defendant's property. According to them, they have no passage to their residential properties other than plaint 'B' schedule chal. eEven if the court finds that 'B' schedule chal is a portion of 'A' schedule property, the plaintiff has given up his right over 'B' schedule chal and now it lies as a water chal and the plaintiff's right, if any, has been lost by adverse possession and limitation also. Since the defendants have not caused any damage to 'C' schedule portion, the decree for mandatory injunction is not liable to be allowed against them.

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On the rival pleadings, both parties adduced evidence, both oral and documentary, consist of the testimony of P.W.1, P.W.2, D.W.1 and DW2 and Exts.A1 to A4, B1, C1 and C1(a). After considering the aforesaid evidence, the trial court decreed the suit on the findings,

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RSA.1203/05 :5:

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that: (1). 'B' schedule chal forms a part of 'A' schedule property and 'A' schedule property absolutely belongs to the plaintiff; (2). The defendants miserably failed to prove any kind of right including right of way over 'A' schedule property, and (3). The defendants have made an attempt to widen 'B' schedule chal and in that attempt they have encroached 'C' schedule portion and thereby the said portion is liable to be restored to its original position by the defendants.

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In appeal, the lower appellate court reversed the aforesaid findings mainly on the reason that no reliance can be placed on Ext.C1 commission report and Ext.C1(a) plan and the evidence of D.W.1 and D.W.2 proves that the defendants have a right of way through the B schedule property in continuation of the right of way enjoyed and exercised by their predecessors. Further, in the absence of sufficient evidence to prove the encroachment over 'C' schedule the defendants are not liable to restore the same to its original position.

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RSA.1203/05 :6:

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Heard the learned counsel for the appellant and the learned counsel appearing for the respondents.

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The substantial questions of law Nos.2 and 3 would stand re-framed for consideration in this Appeal, as given below:

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“Has not the lower appellate court erred in negativing the plaintiff's title and possession over 'B' schedule property, where the defendants have set up a claim of Easement right of way and adverse possession over 'B' schedule property, against the plaintiff.”

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Going by the impugned judgments passed by the courts below, it could be seen that the question in controversy centers around the point, whether 'B' schedule chal forms a part of 'A' schedule property, which belongs to the plaintiff. According to the plaintiff, 'A' schedule property belongs to him by virtue of Exts.A1 to A3. It stands admitted that 'A' schedule property is comprised in Sy.Nos.250 and 305. Even though the defendants contended that 'A' schedule property does not belong to

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RSA.1203/05 :7:

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the plaintiff, they have no case that 'B' schedule property belongs to him or any other person or the said property is not comprised in Sy.Nos.250 and 305. In other words, the defendants have no claim of title or possession over the property comprised in Sy.Nos.250 and 305. More importantly, D.W.1 himself admitted that the property which lies on the southern side of 'B' schedule property is comprised in Sy.No.251. When he was examined in evidence, according to him, 'B' schedule property has no owner at all and he does not know about the ownership of the said strip of land. He further added that he does not know whether it is a Puramboke land or a private property. More over, he admitted that he is unable to say as to what kind of right he has over 'B' schedule property. In short, it is clear that as rightly observed by the trial court, he is not definite about the nature of right claimed by him over 'B' schedule property. It is his case that B schedule property has been lying as a water chal and pathway from the time immemorial.

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RSA.1203/05 :8:

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Coming to the documents, none of the documents among Exts.A1 to A4 mentioned such a water chal as southern boundary of 'A' schedule property. Ext.A5 is the sale deed executed by the father of D.W.2 to the plaintiff's father and in that document, the southern boundary of plaint 'A' schedule property is described as the property comprised in Sy.No.251. Needless to say, admittedly, the property comprised in Sy.No.251 belongs to the defendants. The lower appellate court has not examined Ext.A5 document in its correct perspective and went wrong by relying on the deposition of D.W.2, who deposed that there was a separate way on the southern side of the property, which had been sold by his father to the father of the plaintiff by Ext.A5. This Court is of the view that no reliance can be placed on the deposition of D.W.2, in view of the description of boundary in Ext.A5. If a pathway was in existence as deposed by D.W.1 and D.W.2., the boundary on the southern side of the property as described in Ext.A5 should have been a pathway. As rightly held by the trial

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RSA.1203/05 :9:

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court, the absence of a pathway in Ext.A5 on the southern side would prove the fact that there was no pathway existed as claimed by D.W.1 and D.W.2. Further, the Commissioner had reported that the northern boundary of the property of the defendants and Kuriako is ancient. Here, the construction of the water chal in the year 1982 claimed by P.W.1 assumes significance and relevance. According to him, the property is situated at a lower level towards northern direction. So, water from the forest will be flown to the plaint schedule property which caused destruction of the property. So, he was constrained to construct 'B' schedule chal through the southern side of 'A' schedule property so as to prevent the flow of water in 'A' schedule property and he has put up a mud wall on the northern side of the water chal for preventing flow of water to his residential area on the northern side. Though the defendants contended that the existence of a mud wall on the northern side of plaint 'B' schedule chal indicated the fact that the plaintiff has no possession over 'B' schedule

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RSA.1203/05 :10:

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property, the said argument cannot be accepted in view of the boundaries shown in Ext.A5 sale deed. The above view is further fortified by Ext.C1 report wherein the Commissioner has categorically reported that unless such a water chal had been constructed through the southern side of 'A' schedule property, the northern portion of 'A' schedule property would have been ruined by the flow of water.

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Going by the impugned judgment passed by the lower appellate court, it is discernible that the lower appellate court reversed the findings of the trial court on a finding that no reliance can be placed on the commission report. But, it is pertinent to note that even though the defendants had filed an objection against the age of the pathway, mud wall and the bund portion which gives entry to defendants' property, they had not challenged the measurements or plotting of the properties. More clearly, the defendants had not prayed for setting aside the commission report or to remit back the same for re-

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RSA.1203/05 :11:

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measurement. It is true that the plaint schedule property, according to the plaintiff, is having an extent of 2 Acres and 16.5 cents and in measurement it was found that the property is having 2 Acres and 12 cents only and the Commissioner has not given any explanation for the reduction of extent. This Court is of the view that such a reduction of extent of 'A' schedule property has no relevance or significance, when the defendants had no claim over the plaint 'A' schedule property and the extent of property was not a matter in issue involved in the suit. Had there been any excess of land in measurement, such excess land would have caused consequence. Therefore, the lower appellate court is not justified in discarding the commission report merely on the reason that there is a reduction in the extent of property. Here, the lower appellate court failed to consider the matter in issue involved in the suit, in view of the contentions raised by the defendants, in its correct perspective and went beyond the scope of interference under appellate jurisdiction. Thus,

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RSA.1203/05 :12:

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the aforesaid finding is vitiated by perversity. In the above analysis, this Court finds that plaint 'B' schedule property forms a part of 'A' schedule property and the trial court is justified in finding so.

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The next question to be considered is, whether the lower appellate court is justified in finding that the defendants have a right of way through plaint 'B' schedule property. As regards the right of way, the defendants have never claimed a right of way by prescription or necessity. So also, the plaintiff has no case that 'B' schedule water chal is a public way or a puramboke way or a Panchayat property. He unambiguously stated that he does not know against whom he is claiming right of way over 'B' schedule property. His further admission is that his counsel was also unable to advise him regarding the nature of right of way over 'B' schedule property.

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As regards an easement right of way, the pleadings must be specific. First of all, the dominant owner must accept the title of the servient owner on the

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RSA.1203/05 :13:

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servient heritage. Unless the dominant owner admits the servient owner's title over the servient heritage, the easement right of way by prescription can never be claimed. Similarly, the defendants have no case that 'A' schedule property and his property belong to a common ownership and the properties were separated by severance of common ownership and tenements. More importantly, the defendants have not admitted the plaintiff's title over 'A' schedule property, though he has not claimed any right over 'A' schedule property. Therefore, even if the plaint averments or deposition of P.W.1 are taken at its face value, the said averments or the deposition do not constitute the ingredients of an easement right of way either by prescription or by necessity. Further, no evidence has been adduced to show that 'B' schedule property is a puramboke land or a public way.

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Similarly, the defendants have contended that if the defendants have title and possession over 'B' schedule property, the same had been lost by adverse possession.

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RSA.1203/05 :14:

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Here also, it is trite law that unless the title of the owner of the property is admitted, one cannot claim right of adverse possession over his property. In short, the defendants have no consistent case with respect to the 'B' schedule property. On the other hand, the plaintiff has established his title and possession over 'B' schedule property, which forms a part of 'A' schedule property. In the above analysis, the trial court is justified in decreeing the suit. The lower appellate court has erred in negativing the plaintiff's title and possession over 'B' schedule property, where the defendants have set up a claim of Easement right of way and adverse possession over 'B' schedule against the plaintiff as such pleas would amount to admission of the plaintiff's title over 'B' schedule property and the question of law is answered accordingly.

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As regards the mandatory injunction, going by the evidence on record, it could be seen that there is no evidence other than the self-serving testimony of P.W.1. There is no independent evidence to support the case of

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RSA.1203/05 :15:

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the plaintiff that the defendants encroached 'C' schedule portion of 'B' schedule property and have done spade work over the said portion so as to widen B schedule chal. In the absence of sufficient evidence to prove the said encroachment, the prayer for mandatory injunction will stand rejected and the lower appellate court is justified to that extent only. This Regular Second Appeal is allowed in part by granting a decree for permanent prohibitory injunction restraining the defendants and their men from trespassing into plaint 'A' schedule property or from using 'B' schedule as a passage or from committing any act of

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waste to the plaint A & B schedule properties.

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All pending Interlocutory Applications will stand closed.

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Sd/K.HARILAL, Judge.

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dst/okb

Abraham v. Joseph

Case brief

What is this about?

What did the court decide?

Abraham v. Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

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