Dismissed

Akhila Kerala Dheevara Sabha v. Rosamma

Kerala HC7 May 2024RSA/242/2020

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the second appeal in a dispute over boundary fixation and injunctions. The court held that no cloud existed over the plaintiffs' title and the lower courts correctly decided the case without ordering recovery of possession. The appeal failed as no substantial question of law arose.

What did the court decide?

The second appeal was dismissed, affirming the decrees of the trial court and the First Appellate Court.

Akhila Kerala Dheevara Sabha Vs Rosamma — Property and Title | Kerala HC (2024)

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R.S.A.No.242 of 2020

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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 T.R.RAVI

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TUESDAY, THE 7 T H DAY OF MAY 2024 / 17TH VAISAKHA, 1946

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RSA NO. 242 OF 2020

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(AGAINST THE JUDGMENT AND DECREE DATED 08.08.2019 IN

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A.S.No.21/2014 ON THE FILE OF SUB COURT, CHERTHALA AND JUDGMENT

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AND DECREE DATED 31.01.2014 IN O.S.No.813/2004 OF PRINCIPAL

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MUNSIFF COURT, CHERTHALA)

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APPELLANTS/APPELLANTS/DEFENDANTS:

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1 AKHILA KERALA DHEEVARA SABHA

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BRANCH NO.5, THANNEERMUKKOM, REPRESENTED BY ITS PRESIDENT KAMALOLBHAVAN K. N., THANNEERMUKKOM MURI, THANNEERMUKKOM NORTH VILLAGE, ALAPPUZHA DISTRICT.

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2 AKHILA KERALA DHEEVARA SABHA

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BRANCH NO.5, THANNEERMUKKOM, REPRESENTED BY ITS SECRETARY, P. K. PAVITHRAN, THANNEERMUKKOM MURI, THANNEERMUKKOM NORTH VILLAGE, ALAPPUZHA DISTRICT.

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3 THANNEERMUKKOM PATHAPARAMBU KSHETHRA DEVASWOM REPRESENTED BY ITS PRESIDENT KAMALOLBHAVAN K. N., PUTHUVALNIKARTHIL, THANNEERMUKKOM MURI, THANNEERMUKKOM NORTH VILLAGE, ALAPPUZHA DISTRICT.

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4 THANNEERMUKKOM PATHAPARAMBU KSHETHRA DEVASWOM REPRESENTED BY ITS SECRETARY, K. SAMBHODHARAN, MADAYIL VEETIL, THANNEERMUKKOM MURI, THANNEERMUKKOM NORTH VILLAGE, ALAPPUZHA DISTRICT.

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BY ADV C.P.PEETHAMBARAN

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RESPONDENTS/RESPONDENTS/LEGAL HEIRS OF PLAINTIFF:

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1 ROSAMMA W/O. P. J. JOSEPH, THUNDATHIL KARIYIL, THANNEERMUKKOM MURI, THANNEERMUKKOM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688 555.

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R.S.A.No.242 of 2020

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2 MARTIN JOSEPH KARIYIL THUNDATHIL KARIYIL, THANNEERMUKKOM MURI, THANNEERMUKKOM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688 555.

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3 MARPHY JOSEPH KARIYIL THUNDATHIL KARIYIL, THANNEERMUKKOM MURI, THANNEERMUKKOM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688 555.

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4 RAMSY W/O. C. V. JOSEPH, CHAMPAPPALLY HOUSE, THALAYAZHAM P. O., VAIKOM - 686 144.

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5 DEEPA W/O. JOSEPH, CHELLATTU HOUSE, KALARKODE P. O., ALAPPUZHA - 688 002.

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BY ADVS. R4 & R5 BY SRI.JOBY CYRIAC SHRI.KURIAN K JOSE

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2023, THE COURT ON 7.5.2024 DELIVERED THE FOLLOWING:

R.S.A.No.242 of 2020

T.R. RAVI, J.

R.S.A.No.242 of 2020

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-------------------------------------------Dated this the 7 th day of May, 2024

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JUDGMENT

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The defendants in a suit for fixation of boundary, mandatory injunction, and perpetual injunction, who have lost their cause before the trial court and the First Appellate Court, have filed this appeal. Even though notice was ordered on the petition for condonation of delay and the delay was condoned, the appeal has not so far been formally admitted after framing any substantial question of law. Since the appeal has been pending for the past three years, and the respondents have also appeared, I am proceeding to hear the appeal finally on the questions of law formulated in the memorandum of appeal.

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The plaintiffs trace their title to a Will executed on 19.11.1968 by the grandfather of the original plaintiff. The original plaintiff died pending suit. The grandfather died on 18.7.1974, six years after the execution of the Will. It is stated that the properties of an extent of 79 cents, were purchased by the great grandfather of the plaintiff, in a court sale. The plaint schedule property of an extent of

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R.S.A.No.242 of 2020

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39.5 cents is situated on the northern side of the entire extent. The plaintiff's predecessors released the balance of 39.5 cents on the southern side to the previous jenmi. As the property on the southern side had been abandoned for some time, the local residents installed structures like chitrakoodam and started offering prayers there. It is stated that some workers of the 1^st defendant had reinstalled the idols in the structures that had been put up by the local residents, which was completed in December 2003. The plaintiffs contend that while making the said constructions, the defendants had encroached into the plaint schedule property, which was the northern half of the 79 cents above mentioned. It is stated that when the plaintiffs objected to the encroachment, the defendants undertook to remove the same after a temple is built in the 39.5 cents on the southern side of the plaint schedule property. It is stated that the temple was inaugurated in December 2003 and thereafter the plaintiffs demanded in writing to remove the structures illegally put up. It is contended that the plaint schedule property is bounded by a lake on the east, a Panchayat road on the west, and a fencing on the north and that the defendants are taking advantage of the fact that there is no boundary demarcation on the southern side. The suit was filed in the above circumstances.

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R.S.A.No.242 of 2020

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The defendants filed a written statement contending that the original plaintiff was never in possession and enjoyment of the plaint schedule property, that the plaint schedule property and the property on the southern side are lying as a single plot, that the entire properties including the plaint schedule had devolved on the 1^st defendant through a gift deed No.6484/76 and a Trust Deed No.5971/77, that right if any of the plaintiffs have been lost by adverse possession and limitation and that the plaintiffs are not entitled to the reliefs prayed for.

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The plaintiffs examined PWs 1 to 7 on their side and Exts.A1 to A8 were marked in evidence. The defendants examined DWs 1 to 3 on their side and Exts.B1 to B6 were marked in evidence. Exts.C1 to C3 are the Commission Reports and Exts.C1(a), C2(a) and C3(a) are the sketches prepared by the Commissioners.

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The trial Court considered the evidence on record and decreed the suit finding that the plaintiffs have title and possession over the plaint schedule property. A.S.No.21/2014 filed by the defendants before the Sub Court, Cherthala was dismissed, confirming the decree granted by the trial Court. Hence the second appeal.

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R.S.A.No.242 of 2020

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6. The following substantial questions of law have been

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formulated in the memorandum of regular second appeal.

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(i). Can a mere suit for Mandatory injunction is maintainable without a prayer for recovery of possession on the strength of title of the plaintiff, once title itself is disputed?

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(ii). Can a decree of prohibitory injunction can be granted once it is proved that the defendant is in possession of the property for a quite long time?

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(iii). Once it is admitted that the predecessor in interest of the plaintiff permitted the defendant to put up structures and conduct prayers in the property, is not the plaintiff stopped from recovering the possession without terminating the arrangement ?

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(iv). Is not the plaintiff is liable to prove the Will once the defendant disputed his title in terms of Indian Succession Act and Indian Evidence Act?

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(v). Once the defendant in specific term contended that the suit is barred by limitation and also the defendant perfected title by adverse possession, is not the Court below bound to frame an issue regarding the plea of adverse possession and limitation?

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(vi). Once Ext. C-1(a) plan itself is disputed and challenged by the plaintiff, can a decree be granted based on Cl(a) plan and the acceptability of the same is not considered by the Trial Court, in pursuance of the direction in OP(C)261/2012 of this Hon'ble Court?

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(vii). Once the acceptability of the commissioner's report and plan is disputed by the plaintiff, can a decree of fixation of boundary can be granted based on that disputed plan, and the acceptability of C1(a) C2(a) plans are not finally decided by the trial Court after taking evidence?

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7 . The main argument advanced by the counsel for the

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R.S.A.No.242 of 2020

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appellants is that this is a case where there is denial of title and possession and hence remedy of the plaintiff was to seek recovery of possession rather than to file a suit for mandatory and prohibitory injunction. Reliance is placed on the judgment of the Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRs & Ors. [(2008) 4 SCC 594] . The Honorable Supreme Court had in the said judgment held that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy; that where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction; and where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

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The trial court as well as the First Appellate Court have considered the entire evidence on record and held that the plaintiffs were entitled to the decree prayed for. The courts below have considered the contentions of the appellants on the basis of the documents produced and the oral evidence and found that the appellants are not disputing the title of the plaintiffs. The documents

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R.S.A.No.242 of 2020

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Exts.B1 and B2 relied on by the appellants referred only to the southern side of the entire extent of 79 cents which had been purchased in court auction by the late grandfather of the original plaintiff. Thus, documents of title relied on by the appellants hence do not include the plaint schedule property which is the northern half of the total extent. The courts below also found that the very fact that the appellants were contending that they have perfected their title by adverse possession itself shows that they do not deny the title. In view of the above facts, I do not think that the dictum laid down by the Hon'ble Supreme Court in Anathula Sudhakar (supra) would be applicable in this case. The case on hand is not a case merely seeking an injunction. It is a case where there is a specific prayer for fixation of boundary. There is no cloud on title as contemplated in the judgment aforesaid. It can be seen from the judgment of the trial court and the First Appellate Court that the title and possession of the plaintiffs have been clearly found. The specific case of the plaintiffs is that structures were put up at the time of renovation and reconsecration of the temple in the property on the southern side. There is no dispute regarding the renovation and reconsecration of the temple. It admittedly took place during the

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R.S.A.No.242 of 2020

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year 2003. The suit is filed in 2004. It is not hence a case of a settled possession of the defendants warranting a prayer for recovery of possession, but a mere trespass, which according to the plaintiff was agreed to be removed after the reconsecration of the temple. I hence find that there is no requirement for filing a suit for recovery of possession. The counsel for the appellant relied on the judgment of this Court in OP(c).No.261 of 2012 which arose at an interlocutory stage of this litigation. The said original petition was one challenging the order in I.A.No.3768 of 2011 whereby the learned Munsiff had found that the objections raised against the report of the Commissioner can be considered during the trial after the evidence was adduced. The original petition was dismissed by this Court. This Court found that the order does not in a ny manner prejudice the contentions and it is for the court to decide which is the report and plan that should be accepted. The above judgment does not in any manner improve the case of the appellants. I t only shows that the plaintiff had some reservations about the commission report. The said judgment does not in any manner preclude a decision by the trial court or the First Appellate Court accepting a report on which the plaintiff himself had reservations. The counsel for the appellants then

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R.S.A.No.242 of 2020

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contended that when Ext.C1(a) plan itself is disputed, there cannot be a decree based on Ext.C1(a) plan particularly since the acceptability of the same has not been considered by the trial court pursuant to the directions issued in the judgment in O.P.(C)No.261 of 2012. The above contention also cannot be sustained since the judgment in the above said original petition does not specifically direct consideration of any plan by the trial court. The court only dismissed the original petition, since the order of the trial court will not prejudice the rights. The counsel pointed out that under Section 103 of the Code of Civil Procedure, it is open to this Court to determine an issue of fact on the basis of the evidence on record and the question of the applicability of the plan can hence be considered. I do not think that the appellants can challenge the decree relying on the dispute raised by the plaintiffs regarding commission report. When the plaintiff himself does not have any grievance regarding that, it is not open to the defendants to say that the decree ought not to have been granted on the basis of Ext.C1(a) plan. There is no necessity to apply the course of action provided by Section 103 in a case where there is a clear finding on the facts by the trial court and the first appellate court and there is no perversity in the findings.

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R.S.A.No.242 of 2020

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The counsel for the respondents/plaintiffs relied on the judgment of the Hon'ble Supreme Court in Mohan Lal v. Nihal Singh [ (2001) 8 SCC 584] and Dagadabai (Dead) by LRs v. Abbas @ Gulab Rustum Pinjari [(2017) 13 SCC 705] to submit that no interference is warranted on the concurrent findings of fact in an injunction suit. Reliance is placed on the judgment of a learned Single Judge of this Court in Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan & Ors. [2014 (2) KHC 108] to submit that a suit for fixation of boundary is maintainable without a prayer for recovery of possession. Reliance is also placed on the judgment of

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this Court in Davis Raphel v. Hendry Thomas [2021 (5) KHC

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443] to submit that on concurrent finding regarding the factum of possession, no interference is warranted in an appeal under Section 100 CPC. There can be no dispute regarding the law stated in the said judgments.

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In view of what is stated above, I find that no substantial questions of law arise for consideration in this appeal and the appellants have been made out any grounds for interference with the decree and judgments of the courts below. The questions posed by the appellants in this have already been considered by the trial court

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R.S.A.No.242 of 2020

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as well as the First Appellate Court from the correct perspective and the judgments of the trial court as well as the First Appellate Court cannot be held to be perverse in any manner with regard to the consideration of the evidence on record.

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The second appeal fails and is dismissed.

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Sd/-

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T.R. RAVI JUDGE

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dsn

Akhila Kerala Dheevara Sabha v. Rosamma

Case brief

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Akhila Kerala Dheevara Sabha v. Rosamma

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