Allowed

C.K Ramesh v. Suresh Master @ Surah

Kerala HC6 Feb 2017RSA/520/2013

Case brief

AI extract

What is this about?

In this second appeal regarding a property ownership dispute involving temple lands, the High Court of Kerala restored the trial court's decree granting perpetual injunction. The court distinguished prior precedents, clarified that the disputed land falls outside the temple pond's survey number, and held the lower appellate court misread the survey evidence.

What did the court decide?

Second appeal allowed; first appellate judgment and decree set aside; trial court judgment and decree restored.

C.K Ramesh Vs Suresh Master @ Surah — Partition | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

¶4

MONDAY, THE 6TH DAY OF FEBRUARY 2017/17TH MAGHA, 1938

¶5

RSA.No. 520 of 2013 ()

¶6

----------------------AS 59/2010 & AS 79/2010 of III ADDITIONAL DISTRICT COURT, KOZHIKODE

¶7

OS 127/2007 of PRINCIPAL MUNSIFF’S COURT-I, KOZHIKODE

¶8

APPELLANT/1ST RESPONDENT/PLAINTIFF:

¶9

C.K RAMESH, 39 YEARS, S/O.LATE NARAYANAN NAMBIAR, ENGINEER, C.K.HOUSE, THIRUVANGAD AMSOM DESOM AND POST, THALASSERY TALUK, KANNUR DISTRICT.

¶10

BY ADVS.SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.R.SREEHARI

¶11

RESPONDENTS/RESPONDENTS 2 TO 6 AND APPELLANT/DEFENDANTS:

¶12

1. SURESH MASTER @ SURAH, 51 YEARS, S/O.GOPALAKURUP, ‘MUDRA’, NANGOLAKKANDI PARAMBA, POST PUTHIYANGADI, KOZHIKODE-673 002

¶13

2. K.T.HARISH, 39 YEARS, S/O.LATE K.T.AANDI, KOLODI THEKKEYIL HOUSE, POST ERANHIKKAL, CALICUT-673 303.

¶14

3. P.GOPALAKRISHNAN, 46 YEARS, S/O.LATE KUNHIRAMAN, KIZHAKKEYIL HOUSE, POST ERANHIKKAL, CALICUT-673 303.

¶15

4. KIZHAKKEYIL VELAYUDHAN, 69 YEARS, S/O.PARANGODAN, PARAYICHOOR PARAMBA, POST THALAKULATHOOR, KOZHIKODE-673 317.

¶16

5. A.V.UNNIKRISHNAN NAMBIAR, 67 YEARS, S/O.GOVINDAN NAIR, ‘BABY VILLA’, PUTHUVAYAL, ERANHIKKAL POST, CALICUT-673 303.

¶17

RSA.No. 520 of 2013 ()

¶18

6. THE EXECUTIVE TRUSTEE, PUTHOOR SREE DURGA TEMPLE, PUTHIYANGADI POST, KOZHIKODE-673 002.

¶19

R1 TO R5 BY ADV. SRI.P.V.KUNHIKRISHNAN R6 BY ADVS. SRI.M.P.SREEKRISHNAN SMT.M.H.BINDU

¶20

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

DSV/8/2/17

¶22

B. KEMAL PASHA, J.

¶23

................................................................ R.S.A. No. 520 of 2013

¶24

............................................................... Dated this the 6^th day of February, 2017

¶25

J U D G M E N T

¶26

Challenging the judgment and decree passed by

¶27

the 3^rd Additional District Court, Kozhikode in Appeal Suits No.59/2010 and 79/2010, the defendant in O.S.No.127/2007 of the Principal Munsiff's Court-I, Kozhikode has come up with this second appeal.

¶28

Originally, O.S.No.127/2007 was filed by the present appellant as plaintiff seeking a decree of perpetual injunction restraining the defendants and their men from trespassing into the plaint schedule property, from causing any obstruction to the plaintiff in making any construction in the plaint schedule

¶29

R.S.A. No. 520 of 2013

¶30

-: 2 :-

¶31

property, and from committing waste and damage to the plaint schedule property. Defendants 1 to 5 in the suit were impleaded as persons who were attempting to interfere with

¶32

the user of the plaintiff over plaint schedule item No.1 property by styling themselves as members of the “ Puthoor Bhagavathi Khesthrakkula Sarakshna Samithi ”. The plaintiff has impleaded the 6^th defendant, who is the executive trustee of Puthoor Sree Durga Temple, Puthiyangadi , as a formal party even though there was no attempts from the part of the 6^th defendant to obstruct the user of the plaintiff over plaint schedule item No.1 property.

¶33

According to the plaintiff, plaint item Nos.1 to 9 properties are vested with the plaintiff through various documents. The last document is Ext.A1 dated 20.02.2004 in respect of one cent of property in Sy.No.24/1A of the Elathur Village, which is the plaint schedule item No.1 property. Plaint schedule item Nos.2 and 3 properties were acquired by him in the year 1994, plaint item Nos.4 to 7

¶34

R.S.A. No. 520 of 2013

¶35

-: 3 :-

¶36

were acquired in the year 2006, plaint item No.8 was acquired in the year 1999, and plaint item No.9 was acquired in the year 2000. Plaint shedule items 1 to 9 are lying contiguously.

¶37

According to the plaintiff, the direct access to the plaint schedule properties from Kannur – Kozhikode National High Way to plaint schedule items 4 to 9, is through plaint schedule items 1 to 3. Plaint schedule item No.1 property was purchased by the plaintiff for the purpose of constructing road and to take vehicles to the remaining portions of the plaint schedule properties. The property at the southern side of plaint schedule item Nos.1 and 2 and at the eastern side of plaint schedule item No.3 is the pond of Puthoor Sree Durga Temple . According to the plaintiff, there is clear demarcating boundary between the pond and the plaint schedule properties. When the plaintiff started constructions in the plaint schedule property, defendants 1 to 5 had obstructed the construction by raising boundary

¶38

R.S.A. No. 520 of 2013

¶39

-: 4 :-

¶40

dispute with regard to the plaint schedule item No.1 property. On account of the intervention of the mediators, the parties wanted to have a measurement of the property to

¶41

be done by the Taluk Surveyor. Consequently, an application was filed, and the survey was conducted based on the records of the temple property, all the title deeds of the properties, and the survey records. On a fixation of the boundary by the Taluk Surveyor, it came out that plaint schedule item Nos.1 to 9 belong to the plaintiff. Thereafter, again obstructions were forwarded by defendants 1 to 5 and consequently the suit was filed.

¶42

Defendants 1 to 5 filed a joint written statement contending inter alia as follows: The averment in the plaint that plaint schedule item No.1 property was originally the property of Velayudhan is denied. According to defendants 1 to 5, there was an elephant ghat[Anakadavu] situated at the north eastern corner of the temple pond, for elephants and other animals and birds to have access to the pond

¶43

R.S.A. No. 520 of 2013

¶44

-: 5 :-

¶45

from the National High Way. 'Anakadavu' was constructed for enabling those animals to gain access from the road to the pond. According to defendants 1 to 5, the plaintiff could have access to his property through another road. After acquiring plaint schedule item Nos.2 and 3, the plaintiff wanted to have a short cut to gain entry into his property from the National High Way, for which he had sought for permission from the Temple Secretary. It is also contended that it was by suppressing the existence of 'Anakadavu' the plaint schedule item No.1 property was acquired through Ext.A1. It is further contended that the eastern boundary of plaint schedule item No.2 was shown in the document as 'Anakadavu' and the said aspect has been suppressed when Ext.A1 was executed. One Sudarsanan, who was the title holder of the property situated at the northern side of the temple pond, has sold his property to one Mohammed Ali and at that time the said Sudarsanan had left a strip of land having a width of ¾^th mtr., for enabling the temple to

¶46

R.S.A. No. 520 of 2013

¶47

-: 6 :-

¶48

construct a compound wall. The said aspect has been suppressed in Ext.A1 and therefore, the plaintiff has no right to forward any claims based on Ext.A1. It has also been clearly contended that the 'Anakadavu' situated at the north eastern corner of the temple pond is also in the same survey number as that of the pond, and the same is the temple property.

¶49

After recording evidence and appreciating the evidence adduced before it, the trial court decreed the suit in terms of the plaint. Aggrieved by the said judgment and decree, two separate appeals were preferred, one by defendants 1 to 5 and the other one by the 6^th defendant. That is how the two appeals happened to be filed. The first appellate court allowed both the appeals by setting aside the judgment and decree, and dismissed the suit.

¶50

This Second Appeal has been admitted on the following substantial questions of law:

¶51

"(1) Is the lower appellate court right in

¶52

R.S.A. No. 520 of 2013

¶53

-: 7 :-

¶54

holding that the red shaded plot comprised in Survey No.24/IA also belongs to the temple when no document was produced by the respondents to show that they have got title in respect of the property comprised in Survey No.24/IA?

¶55

(2) Has the lower appellate court gone wrong in not placing reliance on Ext.A1 to hold that the plaintiff has title to the disputed property?”

¶56

Heard the learned counsel for the appellant Sri. P.B. Krishnan, learned counsel Sri. P.V. Kunjikrishnan for respondents 1 to 5 and learned counsel Sri. M.P. Sreekrishnan for the 6^th respondent.

¶57

The learned counsel for the appellant has pointed out that the lower appellate court has simply discarded and disregarded all the legitimate findings entered by the trial court and has unnecessarily non-suited the plaintiff. It has been made clear by the learned counsel for the appellant that the appellant has no claim over any of the portions of

¶58

R.S.A. No. 520 of 2013

¶59

-: 8 :-

¶60

the temple properties or the temple pond.

¶61

Per contra, the learned counsel for the respondents have argued that the appellant ought to have impleaded the Deity who is the title holder of the properties of the temple, since the Deity is a necessary party when the temple properties are involved. Over and above it, it has been argued that the attempt of the appellant is to grab the portions of the temple pond which was originally 'Anakadavu' by which the elephants have to reach the temple pond. It has also been argued that the appellant has not produced the prior document in favour of the vendor of Ext.A1, and that the vendor of Ext.A1 had no subsisting interest over any of the portions of plaint schedule item No.1 property at the time of execution of Ext.A1. In short, the argument is that virtually there was no such property in existence for the vendor to convey and therefore, the appellant cannot forward any claim in respect of the plaint schedule item No.1 property.

¶62

R.S.A. No. 520 of 2013

¶63

-: 9 :-

¶64

Just after the filing of the suit, a Commission was

¶65

taken out and the Commissioner filed Ext.C1 report and Ext.C1(a) sketch. The Commissioner has clearly stated that the Commissioner could see that both plaint schedule item No.1 property and the temple pond have direct access to Kozhikode – Kannur National High Way. The same has been noted in Ext.C1(a) sketch also. The Commissioner has clearly noted the existence of the survey stone separating the temple pond and plaint schedule item No.1 property where it touches the National High Way. The other survey stones which were present at the boundary of the plaint schedule properties were also shown by the Commissioner. The Commissioner has clearly marked the survey stone present at the north eastern corner of the temple pond which separates the property of the pond from plaint schedule item No.1 property. The Commissioner has noted in Ext.C1 that a compound wall, constructed with double layered laterite stones, was in existence which

¶66

R.S.A. No. 520 of 2013

¶67

-: 10 :-

¶68

separates the plaint schedule properties and the temple pond.

¶69

The contention that the Deity has not been made

¶70

a party and therefore, the suit is bad for non-joinder of necessary parties cannot be taken at present. Had there been a genuine attempt by forwarding such a contention, the same ought to have been pressed before the trial court and an issue to that effect ought to have been framed as a preliminary issue, and the same ought to have been decided. In such case, had the suit been bad for non-joinder of necessary parties, the plaintiff could have impleaded the Deity also in the party array. According to learned counsel for the appellant, so long as the appellant is not interfering with any of the properties of the temple or the properties of the Deity, the Deity is not a necessary party to the suit. It was also pointed out that, in all fairness the appellant did not want to drag the Za morin or the Deity into a suit, especially when the plaintiff was not forwarding any claim over even an

¶71

R.S.A. No. 520 of 2013

¶72

-: 11 :-

¶73

inch of property of the temple. At the stage of second appeal, this Court is of the view that the question regarding non-joinder cannot be taken up.

¶74

Even though the the learned counsel for the respondents 1 to 5 have invited the attention of this Court to the decisions reported in Govindan Nair v. Gopalakrishna Sharma [1988(1) KLT 739] and Narayana Pillai Madhavan Pillai and others v. Kali Gomathi Amma and others [2015 (1) KLJ 531] , the facts of the cases in the decisions noted supra are not similar to the facts and circumstances of this case, and therefore the said decisions have no application to the facts and circumstances of this case.

¶75

Apart from the above, it has to be noted that the 6^th defendant temple trustee has not specifically denied the right of the plaintiff to forward claims based on Ext.A1. Some evasive denials are there in the written statement. Apart from that, the validity of Ext.A1 or the title and possession of the vendor of Ext.A1 who had executed

¶76

R.S.A. No. 520 of 2013

¶77

-: 12 :-

¶78

Ext.A1 in favour of the plaintiff or the authority of the vendor of Ext.A1 to execute Ext.A1 in favour of the plaintiff has not been specifically challenged. The main contention, and the crux of the contentions resorted to by the 6^th defendant in the written statement is that the documents being relied on by the plaintiff are not binding on the temple or its properties At the same time, the authority of the vendor of Ext.A1 to execute the said document has not been specifically challenged.

¶79

Regarding the challenge forwarded by defendants 1 to 5 in respect of Ext.A1, it has to be noted that even according to them the vendor of Ext.A1 had left some portions of his property at the southern side. According to them, that was for enabling the temple to construct a compound wall. Defendants 1 to 5 have no case that the vendor of Ext.A1 had dedicated any of the portions of his property to the Deity. Therefore, from the admissions of defendants 1 to 5 itself, it is evident that the

¶80

R.S.A. No. 520 of 2013

¶81

-: 13 :-

¶82

vendor of Ext.A1 had retained his title and possession over some extent of property which was lying at the southern side of the property earlier sold by him to one Mohammed Ali.

¶83

The learned counsel for the appellant has invited

¶84

the attention of this Court to Exts.A7 and A9. Ext.A7 is an abstract of the list of properties possessed by Puthoor Sree Durga Temple, Puthiyangadi wherein all the properties of the said temple including the temple pond have been listed. Item No.1 is the 'kshethrakkulam' (temple pond) situated in Re.Sy.No.34/7A, having an extent of one acre and 17 cents. The other properties of the temple are in Re.Sy.Nos.34/14A, 34/12 and 43/2/01. The plan appended as the second sheet in Ext.A7 clearly shows all the boundaries of the pond and the other properties of the temple.

¶85

In the suit, a second Commissioner was also appointed, who prepared Ext.C2 report and C2(a) survey plan with the assistance of a retired Head Surveyor. A comparison of Ext.C2(a) plan with the plan enclosed in

¶86

R.S.A. No. 520 of 2013

¶87

-: 14 :-

¶88

Ext.A7 will clearly show that the temple pond has not lost even an inch of property; whereas it gained some thing more. As is evident from Ext.C2(a) plan, the boundary at the eastern extremity of the temple pond which meets the National High Way was originally having a length of 11.4 mtrs.; whereas presently as per Ext.C2(a) plan, the length is 13.9 mtrs. The portion of the 'Anakadavu' is also shown in Ext.A7 as well as Ext.C2(a), as an extended portion. The eastern boundary of the plaint schedule item No.2 property is nothing but the western side of the extended portion shown at the northeastern corner of the temple pond. In Ext.A7 plan as well as in Ext.C2(a) plan, the said boundary sharing the eastern boundary of plaint schedule item No.2 is the western boundary of the said extended portion, having a length of 4.6 metres. At the same time, the other boundary of the extended portion was originally having a length of 9.4 metres. Presently, as per Ext.C2(a) plan, the said boundary is having a length of 8 metres only. The said

¶89

R.S.A. No. 520 of 2013 -: 15 :-

¶90

short difference has occurred just because of the fact that the eastern boundary of the said extended portion, which meets the National Highway, which was originally having a length of 11.4 metres, has been presently extended to 13.9 metres as is evident from Ext.C2(a) plan. Whatever it is, it is a fact that the total extent of the pond has gained something more after Ext.A7 plan and it has never suffered any loss or decrease in its extent.

¶91

The learned counsel for the respondents have heavily relied on the contents of Exts.B2 and B4. Ext.B2 is a request letter preferred by one M.Gangadaran Menoki to the Secretary of the Puthoor Kshethra Samrakshana Samithi on 22.08.1993. It was from the said M.Gangadaran Menoki, the plaintiff had purchased plaint item Nos.2 and 3. Through Ext.B2, the said M.Gangadaran Menoki had requested the Secretary to permit him to have an access to the National Highway through the 'Anakadavu' portion. It is true that the request in Ext.B2 was not acceded to. After the

¶92

R.S.A. No. 520 of 2013

¶93

-: 16 :-

¶94

purchase of the property by the plaintiff, the plaintiff along with his mother's elder sister, preferred Ext.B4 letter to the Secretary of the Puthoor Sri Durga Temple on 18.02.1997. Through the said letter, they had sought for permission to use an alternate access to their property through the northeastern corner of the temple pond whether there is a small extended portion usually known as 'Anakadavu'. Therefore, from Ext.B4, it is evident that the said portion named 'Anakadavu' is nothing but the extended portion of the pond shown at its northeastern corner, which is shown both in Ext.A7 plan as well as Ext.C2(a) plan. They wanted to put up slab over that portion in order to make a road to have vehicular access to plaint item Nos.2 and 3 through that portion. The said request was also not acceded to. It was at that juncture, the plaintiff was forced to work out other remedies to have an access to his properties from the National Highway. It was therefore, he had approached the said Sudarsan Velayudhan and purchased plaint item No.1

¶95

R.S.A. No. 520 of 2013

¶96

-: 17 :-

¶97

property through Ext.A1. The learned counsel for the appellant has pointed out that the plaintiff had to spend much for purchasing the said one cent of property, that too

¶98

in golden scales, just because of the fact that it was for access to his remaining properties from the National Highway.

¶99

The argument forwarded by both the learned counsel for the respondents is precisely that the plaintiff has forwarded the claim based on Ext.A1 through the portions of 'Anakadavu', which is nothing but the property of the temple. At the same time, on a perusal of Ext.C2(a) and a comparison of Ext.C2(a) with Ext.A7, it is evident that the red shaded portion in Ext.C2(a), which is plaint item No.1 is lying outside the northern boundary of Anakadavu, which is the extended portion shown in Ext.A7 plan as well as Ext.C2 (a) plan. Plaint item No.1 is abutting the Kozhikode - Kannur National Highway. In Ext.C1(a) sketch also, the Commissioner could identify and note the survey stone

¶100

R.S.A. No. 520 of 2013

¶101

-: 18 :-

¶102

situated at the northeastern corner of the extended portion. It has clearly come out that it was during the pendency of the suit, the defendants had constructed a compound wall at the eastern boundary of the pond as well as Anakadavu which abuts the National Highway. It is evident that without any authority, they had extended the compound wall through the eastern boundary of plaint item No.1 property also. When those things were done during the pendency of the suit, it cannot be said that the plaintiff has to seek any better relief.

¶103

Regarding the argument advanced by the learned counsel for the respondents that plaint schedule item No.1 property is portions of 'Anakadavu', it is evident that the said argument has no legs to stand because of the fact that the said piece of land is lying outside the northern boundary of that extended portion of the pond, that too in a totally different survey number. When the said defendants 1 to 5 have specifically contended that the plaint schedule item

¶104

R.S.A. No. 520 of 2013

¶105

-: 19 :-

¶106

No.1 is 'Anakkadavu' and that the 'Anakkadavu' is in the same survey number of that of the pond, their contention that the plaint schedule item No.1 is 'Anakkadavu' seems to be false, since plaint schedule item No.1 is in totally different survey number than that of the temple pond and the extended portion. There is no meaning in contending that the temple is in dire need of the red shaded portion also as elephants have to come to the pond, because of the fact that presently, defendants 1 to 5 have chosen to construct a compound wall closing down the said portion of the eastern boundary of the temple pond as well as the eastern boundary of plaint schedule item No.1 also. Admittedly, the said portion is not being presently used for taking elephants to the pond.

¶107

Lastly, the learned counsel for the 6^th respondent has argued that even though a survey was allegedly conducted by the Taluk Surveyor at the instance of the plaintiff, no notice was issued to the 6^th respondent or any of

¶108

R.S.A. No. 520 of 2013

¶109

-: 20 :-

¶110

the authorities of the temple and, therefore, the survey if at all conducted was not in accordance with the Survey and Boundaries Act or Rules. The learned counsel for the appellant has invited the attention of this Court to Ext.A6 notice issued by the Additional Tahsildar, Kozhikode, both to the plaintiff as well as the 6^th defendant informing them regarding the re-fixation of boundaries. Ext.A8 was the proceedings issued by the District Survey Superintendent on 15.11.2006 on the appeal dated 10.04.2006 preferred by the Zamorin regarding the fixation of boundary made in the survey. Matters being so, it cannot be presently contended that the 6^th defendant had no knowledge about any survey carried out in the property by the Revenue officials.

¶111

It has clearly come out that the 'Anakadavu' is in the very same survey number of the temple pond. The plaint schedule item No.1 situated at the eastern side of the 'Anakadavu' does not come within the survey number of the temple pond. The temple pond as well as 'Anakadavu' is

¶112

R.S.A. No. 520 of 2013

¶113

-: 21 :-

¶114

situated in survey No.34/7A, whereas, the plaint schedule item No.1 property is situated in survey No.24/1A. Even according to respondents 1 to 5, as per their clear admission in their written statement, the 'Anakadavu' is in the same survey number of the temple pond.

¶115

On going through the entire evidence and records of this case and on hearing either side, it has clearly come out that the lower appellate court has totally misread the evidence and has failed to appreciate the evidence in its correct perspective. The lower appellate court has totally disregarded all the observations and findings entered by the trial court, without any valid reasons. Matters being so, the judgment and decree passed by the lower appellate court are liable to be set aside and the judgment and decree passed by the trial court have to be restored.

¶116

In the result, this Regular Second Appeal is allowed and the judgment and decree passed by the lower appellate court are set aside, and the judgment and decree passed by

¶117

R.S.A. No. 520 of 2013

¶118

-: 22 :-

¶119

the trial court are restored. In the nature of this Appeal, the parties shall bear their respective costs. All the interlocutory applications in this appeal are closed.

¶120

Sd/- B. KEMAL PASHA, JUDGE.

¶121

ul/-

¶122

// true copy //

¶123

P.S. to Judge.

C.K Ramesh v. Suresh Master @ Surah

Case brief

What is this about?

What did the court decide?

C.K Ramesh v. Suresh Master @ Surah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Prabha Vs Sureshkumar

P.Yooseph Vs B.Rajendran

Noushad Vs Aliar

Kalyani Vs Gopalan

Sankara Narayana Pillai Vs Harigovindan

Geethamani Vs Premakumar & Ors.