Dismissed

Mathew @ Kunju v. Georgekutty @ Kuttan

Kerala HC2 Jul 2019RSA/934/2009

Case brief

AI extract

What is this about?

The Kerala High Court disposed of an appeal against concurrent lower court judgments dismissing a suit for fixation of boundary and injunction. The court held that a suit for boundary fixation cannot be sustained without a prayer to recover the encroached portion found in possession of the defendant.

What did the court decide?

The appeal was dismissed with no costs awarded to any party.

Mathew @ Kunju Vs Georgekutty @ Kuttan — Partition | Kerala HC (2019)

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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 P.SOMARAJAN

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TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941

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RSA.No.934 of 2009

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AGAINST THE JUDGMENT IN AS 39/2007 of PRINCIPAL SUB COURT,ALAPPUZHA DATED 31-03-2009

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AGAINST THE JUDGMENT IN OS 355/2004 of PRINCIPAL MUNSIFF,ALAPPUZHA DATED 23-07-2007

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APPELLANTS/APPELLANTS/PLAINTIFFS:

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1 MATHEW @ KUNJU, S/O.THOMAS AVIRAH, AGED 78 YEARS, POOMTHURA PARAMBIL, ANAPRAMBAL NORTH, THALAVADY VILLAGE, THALAVADY P.O.

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2 ALEYAMMA, W/O.MATHEW @ KUNJU, AGED 69 YEARS, POOMTHURA PARAMBIL, ANAPRAMBAL NORTH, THALAVADY VILLAGE, THALAVADY P.O

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BY ADVS. SRI.ABHILASH AKBAR SRI.C.S.MANU SMT.SUMEY CHANDRAN SRI.K.N.RAVEENDRAN SRI.K.THAVAMONY SRI.P.CHANDRASEKHARAN PILLAI (VENNELA) SRI.S.K.PREMRAJ SRI.T.B.SIVAPRASAD

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 GEORGEKUTTY @ KUTTAN AGED 57 YEARS, CHAMAKULAM, ANAPRAMBAL NORTH, THALAVADY VILLAGE, THALAVADY P.O.

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R.S.A.No.934 of 2009

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:-2-:

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2 ANNAMMA GEORGE @ KUNJUMOL W/O.GEORGEKUTTY, CHAMAKULAM, ANAPRAMBAL NORTH, THALAVADY VILLAGE, THALAVADY P.O.

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3 ANIL, S/O.GEORGEKUTTY, AGED 27 YEARS CHAMAKULAM, ANAPRAMBAL NORTH, THALAVADY VILLAGE, THALAVADY P.O.

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BY ADVS. SRI.GEORGE MATHEW SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.No.934 of 2009

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J U D G M E N T

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The plaintiffs after suffering two decrees concurrently from the courts below, came up with this appeal, in a suit for fixation of boundary and injunction. Later on it was amended by incorporating a prayer for mandatory injunction.

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The subject matter of the suit comes to 61.5 cents of property comprised in Survey Nos.122/10 & 122/9 of Thalavadi village. It was originally belonged to the father of the plaintiff one Thomas, who in turn executed a testamentary succession by way of a Will, exhibited as Ext.A1

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bequeathing the property to the legatees under the Will, namely the plaintiff and after his death, with an ultimate deposition to his sons. The

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adjoining property owner is the defendant who

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obtained property comprised in Survey No.122/6 by way of 'kudikidappu'.

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R.S.A.No.934 of 2009

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The Survey Commissioner who visited the

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property prepared Ext.C2 report and Ext.C2(a) plan after surveying the property. It was reported by the Commissioner that some portion of plaint schedule property found to be lying inside the fencing constructed around the property of the

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defendant, i.e., the kudikidappu property. The plaintiff in the box had admitted the possession of the said property for the last 20 years by the defendants. The encroached portion was also located by the Commissioner in Ext.C2(a) plan, based on which both the Trial court and the First Appellate Court dismissed the suit as there cannot be any fixation of boundary without recovering the encroached portion of the property found in possession of the defendants. Against the above said concurrent finding, the plaintiff came up with this appeal.

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The arguments of the appellants is two-

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R.S.A.No.934 of 2009

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folded. One is that there is no necessity for incorporating a prayer for recovery of possession as there is a mandatory injunction sought by the party to remove the encroachment. Secondly, on the reason that unless the possession of defendant over a portion of property of plaintiff, there need not be any prayer for recovery of possession, and that

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the plaintiff cannot be non-suited unless perfection of title by the defendant.

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On coming into the first question, Section

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39 of the Specific Relief Act, 1963, is self explanatory. A mandatory injunction can be granted for the purpose of preventing a breach of an obligation. Section 39 of the Specific Relief Act is extracted below for reference.

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“ 39. Mandatory injunctions

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When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion

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R.S.A.No.934 of 2009

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grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.”

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An injunction is permissible to prevent a breach of

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an obligation by way of mandatory injunction under Section 39 of the Act and that does not mean that under the guise of a mandatory injunction, the property alleged to have been encroached upon can be recovered. In the Kerala Court Fees and Suit Valuation Act, the relief of mandatory injunction and relief of recovery of possession are separately dealt with, presumably on the reason that both are standing on different footage and there cannot be any overlapping or substitution each other and it is not at all permissible. A suit for recovery of possession when the property is found to be encroached by the other party, hence cannot be avoided. A mere suit for fixation of boundary without a prayer for recovery of possession of

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R.S.A.No.934 of 2009

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encroached portion, hence cannot be sustained.

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On coming into the last two questions, the

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expression 'settled position' can be used by a

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possessor of the property as against the original owner and not vice-versa. The decision relied on by

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the appellant in Civil Appeal No.4527 of 2009

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(dated 29.01.2019), (a copy of the same is

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furnished at the time of argument), hence not applicable in the instant case.

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Another argument was also advanced, based on Article 64 of the Limitation Act which mandates 12 years' period in bringing a suit for recovery of possession. No case of adverse possession or bar of limitation under Article 64 or Article 65 of the Limitation Act, either raised or brought up by the defendants, but it is not at all necessary to raise

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the same in anticipation, unless there is a suit for recovery of possession.

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Yet another argument also raised that the

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R.S.A.No.934 of 2009

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bequeath under the Will shall not be defeated unless the same is challenged by legal heirs/legal representatives of the deceased. The defendants are not the persons either claiming or litigating under

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the testator. They are total strangers. But that does not mean that the legatees under the Will are entitled to a decree of declaration with respect to the property or any portion thereof not in the

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hands of legatees, unless there is a prayer for its recovery. The concurrent finding rendered by both the courts below hence deserves no interference as the questions raised at the time of admission will

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not come into play.

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The appeal is dismissed. No costs.

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All pending interlocutory applications are

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closed.

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P.SOMARAJAN JUDGE

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ami/

Mathew @ Kunju v. Georgekutty @ Kuttan

Case brief

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Mathew @ Kunju v. Georgekutty @ Kuttan

Case brief

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