Twin second appeals over a boundary-fixation suit and an injunction suit concerning a disputed way. The court found the defendants' title claim of 15¼ cents unsupported by the partition deed showing only 11¼ cents, held a cloud on title barred fixation of boundary, upheld injunction over the way, and dismissed both appeals.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA,
1945
RSA NO. 220 OF 2012
AGAINST THE DECREE AND JUDGMENT DATED 29.11.2011 IN AS
NO.130 OF 2008 OF SUB COURT, THALASSERY ARISING OUT OF
THE DECREE AND JUDGMENT DATED 25.03.2008 IN OS NO.376 OF
2003 OF MUNSIFF COURT, THALASSERY
APPELLANTS/APPELLANTS/DEFENDANTS:
1 K.RAMESAN
AGED 49 YEARS
S/O.LATE RAGHAVAN, JANAKI NIVAS,DHARMADAM
AMSOM, PALAYAD DESOM, PALAYAD, THALASSERY
2 K.JANAKI
AGED 70 YEARS
W/O.LATE RAGHAVAN,JANAKI NIVAS,DHARMADAM AMSOM,
PALAYAD DESOM, PALAYAD, THALASSERY(DIED)
IT IS RECORDED THAT SECOND APPELLANT IS NO MORE
AND SHE HAS NO LEGAL HEIRS AS PER ORDER DATEDF
18.01.2013 I.A.NO.1/2023)
3ALAKKADAN LAKSHMI
AGED 70 YEARS
D/O.MATHU, JANAKI NIVAS,DHARMADAM AMSOM,
PALAYAD DESOM, PALAYAD THALASSERY
BY ADV SMT.M.A. ZOHRA
RESPONDENTS/RESPONDENT/PLAINTIFF:
K.RATHNAKARAN
S/O.LATE GOPALAN, AGED 62 YEARS, K.K.HOUSE,
DHARMADAM AMSOM, PALAYAD, THALASSERY
BY ADV SRI.M.SASINDRAN
R.S.A. Nos. 220 & 955 of 2012
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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 06.03.2024, ALONG WITH RSA.955/2012, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
R.S.A. Nos. 220 & 955 of 2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
RSA NO. 955 OF 2012
AGAINST THE DECREE AND JUDGMENT DATED 29.11.2011 IN AS
NO.132 OF 2008 OF THE ADDITIONAL SUB COURT, THALASSERY
ARISING OUT OF THE DECREE AND JUDGMENT DATED 25.03.2008
IN OS NO.151 OF 2002 OF MUNSIFF COURT, THALASSERY
APPELLANT/S:
1 K.JANAKI AGED 70 YEARSW/O.RAGHAVAN, JANAKI NIVAS, DHARMADAM AMSOM, PALAYAD DESOM, PALAYAD P.O., THALASSERY.2 ALAKKADAN LAKSHMIAGED 74 YEARSD/O.MATHU, JANAKI NIVAS, DHARMADAM AMSOM, PALAYAD DESOM, PALAYAD P.O., THALASSERY.BY ADV SMT.M.A.ZOHRA
RESPONDENTS/RESPONDENTS/2ND DEFENDANT AND LRS OF 3RD
DEFENDANT:
1 K.RETNAKARAN,AGED 62 YEARS, S/O.LATE GOPALAN, K.K.HOUSE, DHARMADAM AMSOM, PALAYAD DESOM, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.2 SAINABHA AGED 64 YEARSW/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,R.S.A. Nos. 220 & 955 of 2012
..4..
P.O.PALAYAD, THALASSERY-670661.
3 RAHMAN, AGED 43 YEARS S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET, P.O.PALAYAD, THALASSERY-670661.4 RIYASAGED 40 YEARSS/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
5 SHAJEER AGED 37 YEARSS/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
6 SHAMSU AGED 27 YEARSS/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
7 SHAYINA AGED 43 YEARSS/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
8 FASILA AGED 24 YEARSD/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
9 RASHIAGED 23 YEARS
S/O.LATE ABOOBACKER,SHAHINA MANZIL, NEAR DIET,
P.O.PALAYAD, THALASSERY-670661.
BY ADVS.
SRI.M.SASINDRAN
SMT.K.ANILA THIRUVALLA
SRI.ESM.KABEER
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 06.03.2024, ALONG WITH RSA.220/2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. Nos. 220 & 955 of 2012
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K. BABU, J
R.S.A. Nos. 220 & 955 of 2012
------------------------------------------------Dated this the 6th day of March, 2024
JUDGMENT
These Regular Second Appeals arise from the common judgment and decree passed by the Munsiff’s Court, Thalassery in O.S.Nos. 151 of 2002 and 376 of 2003. Plaintiff Nos. 1 and 2 in O.S.No.151 of 2002 are the appellants in RSA No.955 of 2012. Defendant No.2 and the legal representatives of defendant No.3 are the respondents. Defendant Nos. 1 to 3 in O.S.No.376/2003 are the appellants in RSA No.220 of 2012. The sole plaintiff is the respondent.
R.S.A. Nos. 220 & 955 of 2012 ..6..
injunction. In O.S.No.376 of 2003, plaint A Schedule property is described as 10.58 cents of land. The plaint B Schedule property is described as 11.4 cents of land. The plaint C Schedule is described as a way. Plaintiff is the owner of plaint A schedule property. Defendants are the owners of plaint B Schedule property. Plaint B schedule property in O.S.No.376/2003 is the plaint schedule property in O.S.No.151 of 2002. The extent of the plaint schedule property in O.S.No.151 of 2002 is stated to be 15.25 cents of land.
R.S.A. Nos. 220 & 955 of 2012
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R.S.A. Nos. 220 & 955 of 2012 ..8..
encroach upon plaint C schedule property. The plaintiff and other members of the public prevented the defendants from encroaching upon the property. After that, the defendants instituted O.S.No.151 of 2002 for fixation of boundary and other consequential reliefs against the plaintiff. The claim of the defendants that they are in possession of 15.25 cents of land is not true. The attempt of the defendants is to carve out a portion of the public way. They have no title over 15.25 cents of land as claimed by them.
R.S.A. Nos. 220 & 955 of 2012
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possession of the property. In 1981, the defendants transferred 4.75 cents of land to one George out of the total 20 cents covered by document No.1539/81 of SRO Thalassery. The remaining 15.25 cents of land is the plaint schedule property in O.S.No.151of 2002. In 1995, the plaintiff executed an agreement vide document No.570/1995 of SRO, Thalassery whereby they divided the plaint schedule property into two portions. 7.50 cents were given to Devi and Lakshmi and 3.75cents were given to Janaki and her children. The parties decided to keep 4 cents of land in common. The northern side of the property is the campus of DIET. The land on the south of the property is owned by one Prabhakaran. The land on the eastern side is in the possession of one Nanu Asari and the land on the western side is in the possession of the plaintiff. There was a water passage (thodu) in between the property owned by the defendants and the property owned by Nanu Asari. This thodu was the
R.S.A. Nos. 220 & 955 of 2012 ..10..
natural boundary of the plaint schedule properties. Plaintiff filled the water passage in the year 2001 and fixed a boundary encroaching upon the eastern portion of the property of the defendants. Defendants had filed a complaint in this regard before the District Collector.
Have the Courts below drawn necessary inferences and presumptions based on the pleadings and evidence?
R.S.A. Nos. 220 & 955 of 2012
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(a) Have the defendants acquired title and possession over 15¼ cents of land as claimed by them?
(b) Is C schedule way in existence?
(c) Have the defendants any right to trespass upon C schedule way?
(d) Are the defendants entitled to fixation of boundary as prayed for?
R.S.A. Nos. 220 & 955 of 2012
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property covered by Ext.A1 is 15¼ cents. The case of the defendants is that out of the 20 cents of land devolved upon them, 4¾ cents were assigned to one George in the year 1981 as per document No.1539/1981, and in 1994, with the death of Alakkadan Raghavan, the remaining property devolved upon them. They have a further case that the property was partitioned in the year 1995 by virtue of a partition deed 570/1995. This document has not been produced from the side of the defendants. Plaintiff No.1 gave evidence as PW1. He deposed in tune with the pleadings. On the side of the defendants Exts.B1 to B2(a) were marked. Ext.B1 is a certified copy of the partition deed No.570/1995. As per Ext.B1 document, the property is seen divided into two portions. One portion having an extent of 7½ cents and the other having an extent 3¾ cents allotted to Janaki. Therefore, the total extent of the property covered by Ext.B1 is only 11¼ cents. The case of the defendants is that the remaining
R.S.A. Nos. 220 & 955 of 2012
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extent, being 4 cents, has been kept in common by the plaintiff without partition in the year 1995. Therefore, they are seeking fixation of boundary in respect of 15¼ cents of land.
R.S.A. Nos. 220 & 955 of 2012 ..14..
property on a second time as per the request of the defendants. The Commissioner measured the property with the help of field measurement book and title deeds of the parties and prepared Ext.C4 plan. In Ext.C4 plan, he has located plot A as the property owned by the plaintiff and plot B as the properties in the possession of defendants. The Commissioner noted that plot A has an extent of 10.58 cents and plot B has 11.4 cents. The Commissioner also noted the disputed portion as yellow shaded portion having an extent of one cent. The defendants admitted that they effected partition in respect of the property as per deed No.570/95 (Ext.B1). They claim title over the property as per Ext.A1. The specific challenge of the plaintiff is that the defendants have acquired only 11¼ cents of land and they are not in possession of 15¼ cents of land. PW1 is a signatory to Ext.B1 document. He would depose that he affixed his signature in Ext.B1 fully understanding the contents of it.
R.S.A. Nos. 220 & 955 of 2012
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He further stated that he had no dispute regarding the measurement shown in Ext.B1. PW1 deposed that the property on the immediate west of the property was assigned to one Goerge. Ext. B1 shows that the western boundary of the property belongs to Nani, the mother of defendant No.2. If the property assigned to George was on the immediate west of their property, the western boundary in Ext.B1 should have been shown as the property belonging to George. The recitals in Ext.B1 would clearly show that the entire property left after the assignment was partitioned. Ext.B1 is silent regarding keeping of any portion of the property in common. Ext.B1 makes it clear that the entire property remaining after the assignment was divided into two portions. Therefore, the extent of the property partitioned as per Ext.B1 is only 11¼ cents and not 15¼ cents as contended by the defendants. The learned Counsel for the respondents, relying on Anjil Vellachi v. Mamuni Bhaskaran [2009
R.S.A. Nos. 220 & 955 of 2012
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(3) KHC 728] , contended that as there is no specific prayer for declaration and recovery of possession, the remedy for fixation of boundary cannot be granted.
R.S.A. Nos. 220 & 955 of 2012
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necessary inferences and presumptions based on the pleadings and evidence.
R.S.A. Nos. 220 & 955 of 2012 ..18..
defendants have no exclusive right over the same. Therefore, the Trial Court granted permanent prohibitory injunction in favour of the plaintiff in respect of C schedule way.
The Regular Second Appeals are dismissed.
Sd/- K.BABU, JUDGE
kkj
1 issue framed by the court
Have the Courts below drawn necessary inferences and presumptions based on the pleadings and evidence?
Colour shows how this judgement treated each authority
Anjil Vellachi v. Mamuni BhaskaranReferred¶11
2009 (3) KHC 728
Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & OrsApplied¶12
2008 4 SCC 594 · Who else cites this
K.Ramesan
K.Janaki
Alakkadan Lakshmi
K.Rathnakaran
Sainabha
Rahman
K. Babu
As recorded by the court registry
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