Remanded

N.P.Vijayaraghavan, v. Jayachandran

Kerala HC5 Jan 2024RSA/585/2021

Case brief

AI extract

What is this about?

Second appeal in an injunction suit with counter claim for boundary fixation and recovery of possession. The court found the Commissioner identified properties as shown by plaintiffs, not by title deeds, and set aside concurrent verdicts, remitting Ext.C2 series to the Commissioner for fresh measurement and remanding the suit to the trial court for fresh disposal.

What the court decided

AI extract

N.P.Vijayaraghavan, Vs Jayachandran — Specific Performance | Kerala HC (2024)

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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 A. BADHARUDEEN

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FRIDAY, THE 5TH DAY OF JANUARY 2024 / 15TH POUSHA, 1945

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RSA NO. 585 OF 2021

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AGAINST THE JUDGMENT AND DECREE IN O.S.NO.79/2012 OF MUNSIFF COURT,

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MANJERI

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AGAINST THE JUDGMENT AND DECREE IN A.S.NO.5/2016 OF SUB COURT,

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MANJERI

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APPELLANT/APPELLANT/DEFENDANT:

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N.P.VIJAYARAGHAVAN,
AGED 68 YEARS
S/O. PANTHAKALATHIL KUNHAN ALIAS NARAYANAN NAIR, KRISHNA
KRIPA, KAPPIL P.O., WANDOOR VIA, NILAMBUR TALUK,
MALAPPURAM DISTRICT-679328.

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BY ADV R.RAJESH KORMATH

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RESPONDENTS/RESPONDENTS/PLAINTIFFS:

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1JAYACHANDRAN,
AGED 70 YEARS
S/O. IDAPPALLI PADMAVATHY AMMA, APARNA, KAPPIL P.O.,
WANDOOR VIA, NILAMBUR TALUK, MALAPPURAM DISTRICT-679328.

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2 KUNNATHODI RANJINI, AGED 40 YEARS

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D/O. JAYACHANDRAN, KEERTHANA, KAPPIL P.O., WANDOOR VIA,
NILAMBUR TALUK, MALAPPURAM DISTRICT-679328.

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3RAJEEV,
AGED 44 YEARS
S/O. ERUVAPRA VILASINI, KEERTHANA, KAPPIL P.O., WANDOOR
VIA, NILAMBUR TALUK, MALAPPURAM DISTRICT-679328.

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R1 TO R3 BY ADV.ANOOP.V.NAIR
R2 & R3 BY ADVS.

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DEVI P.
A.K.ANANDA KRISHNAN
RAMESH CHAND

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
08.12.2023, THE COURT ON 5.1.2024 DELIVERED THE FOLLOWING:

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JUDGMENT

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Dated this the 5^th day of January, 2024

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This appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the decree and judgment in A.S.No.5/2016, dated 23.3.2018 on the files of the Sub Court, Manjeri, arose out of the decree and judgment in O.S.No.79/2012 on the files of the Munsiff Court, Manjeri. The appellant herein is the defendant in the suit.

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I shall refer the parties in this appeal as ‘plaintiffs’ and ‘defendant’ for convenience.

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Heard the learned counsel for the appellant/defendant and the learned counsel appearing for the respondents/plaintiffs.

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As on 13.9.2021, my learned predecessor admitted this appeal, raising the following substantial questions of law:

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1. Has not the trial court grossly erred in holding that the plaintiffs are entitled for a decree for permanent injunction as prayed for, as they have proved their possession in the plaint schedule property

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in a suit, in which title over the disputed property was in issue?

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2. Has not the first appellate court grossly erred in confirming the judgment and decree of the trial court which decreed the suit in which title with respect to the disputed property was in issue, when the properties of the plaintiffs and the defendant were not identified with reference to the title deeds relied on by the plaintiffs and the defendant?

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3. Have not the courts below grossly erred in holding that the plaintiffs are in physical possession of the plaint schedule property on the basis of reports, sketch and plan submitted by the Commissioner, when the same reveal that the plaint schedule property was identified by the Commissioner as shown by the plaintiffs?

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Plaintiffs instituted the suit, seeking relief of prohibitory injunction against trespass upon the plaint schedule property. According to the plaintiffs, the plaint schedule property originally belonged to one Manavikraman Thirumulpad, as per partition deed No.3067/1946 and the 1^st plaintiff purchased right over the same, on the strength of sale deed No.3820/1980. Later, the 1^st plaintiff sold 12 cents out of the said property, in favour of the 2^nd plaintiff, who is the daughter of the 1^st plaintiff and the 3^rd plaintiff, who is

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the husband of the 2^nd plaintiff.

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According to the plaintiffs, defendant is in possession of the property on the southern side of the plaint schedule property and there is a ‘channel’ separating the plaint schedule property and the defendant’s property. Later, the 1^st plaintiff constructed a granite foundation. While so, the defendant and his henchmen attempted to cut and remove trees on the northern side of the water channel and at this juncture, the present suit was filed, seeking permanent prohibitory injunction to restrain them from doing so.

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Defendant appeared and filed written statement, raising counter claim. Defendant inter alia contended that the plaintiffs are claiming title and possession over the property belongs to the defendant. According to the defendant, plaintiffs made attempt to construct compound wall encroaching a portion of the defendant’s property and the boundary was attempted to be fixed by measuring the property through Village Officer, Wandoor. The allegation that the defendant attempted to demolish the wall, was denied. The defendant raised counter claim over B schedule property, on the strength of sale deed No.3720/1986. Accordingly, the defendant

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prayed for fixation of southern boundary of the plaint schedule property and B schedule property belonging to him. Further, mandatory injunction, directing the plaintiffs to remove the compound wall constructed by trespassing into the plaint B schedule property, also was sought for. Alternative relief of recovery of possession also was sought for, if any portion of the defendant’s property to be found in possession of the plaintiffs.

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The learned Munsiff raised issues adverting to the contentions raised by both sides and recorded evidence. No witness was examined on the side of the plaintiffs. Exts.A1 to A5 were marked on the side of the plaintiffs. The defendant himself got examined as DW1 and Exts.B1 to B4 were marked on the side of the defendant. Exts.C1 and C2 series were marked as court exhibits.

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After having heard both sides and on appreciation of evidence, the trial court decreed the suit as under:

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In the result, suit is decreed and counter claim dismissed without costs as follows:-

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1. Plaintiff is entitled to a decree of permanent prohibitory injunction restraining the defendant and his men from trespass into plaint schedule

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property or demolish the structure constructed on the southern side of property of first plaintiff or obstruct construction of wall or disturb plaintiff's right of peaceful possession of plaint schedule property.

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2. Ext.C2(a) plan shall form part of decree in which the northern plot described on the basis of boundary as per possession is the property in possession of plaintiff.

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3. Each party shall bear their respective costs.

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Even though the said verdict was challenged in A.S.No.5/2016 before the Sub Court, Manjeri, the learned Sub Judge also concurred the finding of the trial court.

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While disputing the veracity of the concurrent findings of

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the trial court as well as the appellate court, it is argued by the learned counsel for the defendant that the courts below went wrong in granting prohibitory injunction, merely based on possession, in a case, where the defendant raised counter claim for fixation of boundary and recovery of possession, based on title. According to the learned counsel, the plaint schedule property is 1 Acre land in Re-Sy.Nos.73/3 and 73/7A3. As per Ext.A1, the title deed of the plaintiffs also, the plaint schedule property is 1 Acre. As per

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Ext.C2(a) plan, plot No.1 is property, having an extent of 105.930 cents in Re-Sy.No.127/6. Plot No.3 is property, having an extent of 100.444 cents in Re-Sy.No.127/7. The disputed land is located as plot No.2 in Re-Sy.No.127/7 and the same is 2.421 cents. It is submitted by the learned counsel for the defendant that, even though the suit filed by the plaintiffs was only one for simple injunction, when the defendant raised counter claim, that too, prayer with recovery of possession, on the strength of title, the courts below could not be justified in granting decree in respect of property, having an extent of 108.351(105.930+2.421) cents, ignoring the specific contention raised by the defendant that the disputed area is part and parcel of the defendant’s property, even though the extent of property covered by Ext.B1, title deed is also 1 Acre. It is also pointed out that, as per the Commission Report, the Commissioner also stated that the plaint schedule property situated in Re-Sy.Nos.127/6 and 127/7 in Block No.81 of Wandoor Village was located as plot Nos.1 and 2, as pointed out by the plaintiffs and not on the basis of the schedule description. According to the learned counsel, the said identification of property, at the will of the plaintiffs, is wrong. Therefore, there must be identification of the

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plaint schedule property and the defendant’s property on the strength of their title independently by the Commissioner and such exhaustive plan is absolutely necessary to address the matter in controversy. Therefore, the verdict of the trial court requires interference.

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The learned counsel for the defendant placed decision of this Court in Ibrahim and Others v. Saythumuhammed and Others reported in [2013 (4) KHC 241] : [2013 (4) KLT 435] to contend that simply because a portion of the plaintiff’s property is shown in re-survey record as with the defendant’s survey number, that would not lead to an inference that possession was with the defendant. Another decision of the Apex Court in Premji Ratansey Shah and Others v. Union of India and Others reported in [(1994) 5 Supreme Court Cases 547] , is also placed to contend that no injunction can be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner. In this decision, in paragraph Nos.4 and 5, the Apex Court held as under:

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“ 4. It is seen that in a suit as originally framed, they sought for a declaration that the award made in

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respect of the land was void, inoperative and does not bind the petitioners. But that relief had been given up. Thereby, the title of the land of the railways have not been questioned. With the award made under Section 30, the vendors of the petitioners got themselves bound by the above award under Section 12 of the Act. It is also seen that the two awards had become final and possession was delivered to the railways by the Land Acquisition Officer on 24-2-1960. Thus Defendants 3 and 4 had no ghost of right, title or interest in the lands acquired from the original owner Maibai. The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.

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5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.”

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Another decision in Prataprai N.Kothari v. John

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Braganza reported in [ (1999) 4 Supreme Court Cases 403] , is also placed to contend that a person who has been in long continuous possession of an immovable property can protect the same by seeking an injunction against any person in the world other than the true owner.

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Dispelling this contention, the learned counsel for the plaintiffs submitted that, even though as per Ext.A1 title deed, the property of the plaintiffs is 1 Acre, the plaintiffs have been in possession of enjoyment of the entire extent of property, having an extent of 108.351 cents,1shown as plot Nos.1 and 2 in Ext.C2(a)

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plan and therefore, in order to protect possession of the plaintiffs, prohibitory injunction was rightly granted by the trial court and the said verdict was confirmed by the appellate court as well. Therefore, the concurrent verdicts do not require any interference. 15. While addressing the rival contentions, it is discernible that Ext.A1 is the sale deed, whereby, the 1^st plaintiff obtained title from Manavikraman Thirumulpad and the extent is only 1 Acre. Similarly, as per Ext.B1, the defendant also obtained title to an extent of 1 Acre. Ext.A5 is the tax receipt in the name of the 1^st plaintiff, dated 3.5.2010. In Ext.A5, tax payment was effected in respect of many items of property and the same include property in Re-Sy.No.127/6 and the same does not include property in ReSy.No.127/7. Property of the defendant is in Re-Sy.No.127/7 and the disputed area as plot No.2 also is located in Re-Sy.No.127/7. As pointed out, going by the title deeds of both sides, their property, as per the title deeds, is only 1 Acre each. But, as per Ext.C2(a) plan, the Commissioner located plot No.1, having an extent of 105.930 cents in Re-Sy.No.127/6. Plot No.3 is property, having an extent of 100.444 cents in Re-Sy.No.127/7. The disputed land is located as plot No.2 in Re-Sy.No.127/7 and the same is 2.421 cents.

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Therefore, the courts below found that the plaintiffs are in possession of 108.351 cents of property, shown as plot Nos.1 and 2 in Ext.C2(a) plan and the property of the defendant is confined to 100.444 cents, located as plot No.3 in Ext.C2(a) plan.

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Coming to the identification of both items of properties, it is emphatically clear that the Commissioner’s Report is to the effect that the plaint schedule property was identified, as shown by the plaintiffs and not by the Commissioner independently based on the title deed or any other documents. In this context, the report of the Commissioner marked as Exts.C1 and C1(a), generated before Ext.C2 series, at the time of filing of the suit, assumes significance. As per Ext.C1 report, the Commissioner stated that, property on the southern side of plaint schedule is that of the defendant. There is a granite construction separating the plaintiffs' property with that of the defendant’s property and the same is located as 'A,B,C,D,E,A' in the rough sketch. It is also reported by the Commissioner that A,B,C line is the southern boundary of the plaint schedule property. It is reported further that, exactly in A,B line, a short portion, there was old granite construction. But, in between B and C, having a length of 260 meters, the granite construction is new. The

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Commissioner also reported that consequent to construction of new granite wall in between B and C, there is dispute regarding boundary.

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On the factual matrix of this case, it is not in dispute that plaintiffs filed a simple suit for injunction to protect possession. In such a suit, possession alone is relevant. However, in the instant case, the defendant filed a cross suit/counter claim for the fixation of boundary and also recovery of possession on the specific allegation that plaintiffs encroached upon a portion of the defendant’s property and constructed compound wall and there was police interference at this stage. So, when there is suit for injunction and cross suit/counter claim for fixation of boundary and recovery of possession, on the strength of title, a court cannot grant prohibitory injunction in favour of the plaintiffs merely finding possession and the court should have adjudicated the rival contentions of the parties to fix the boundary between the plaint schedule property and the counter claim schedule property after identifying both items of properties on the strength of title to grant the relief of prohibitory injunction and to consider the prayer for recovery of possession in the cross suit, as well.

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In the case at hand, it is discernible that the Commissioner not at all identified the property on the basis of title deeds or re-survey numbers. This fact is discernible since plaintiffs never paid tax in respect of Re-Sy.No.127/7, found to be in possession of the plaintiffs within the newly constructed compound wall. Further, Commissioner himself says that he had identified the plaint schedule property as shown by the plaintiffs. Therefore, independent identification of properties of the plaintiffs and defendant, based on their title deeds supported by revenue records, is absolutely necessary to find out the actual extent of property entitled by the plaintiffs as well as defendant to grant the reliefs sought for by them. Therefore, it is held that the trial court grossly erred in holding that plaintiffs are entitled to get decree for permanent prohibitory injunction as prayed for merely based on possession in a case even the plaintiffs did not mount the box to give evidence in support of their possession. Similarly, the first appellate court also erred in confirming the verdict of the trial court without identifying the properties, as hereinabove discussed. Answering the substantial questions of law as above, it is held that, proper identification of the properties on the basis of respective

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title deeds supported by old survey plan and new survey plan, is necessary to alleviate the dispute between the parties. Accordingly, Ext.C2 series is remitted back to the Commissioner for measuring the properties afresh, as directed hereinabove. For this purpose, the verdicts under challenge would require interference and accordingly, the verdicts under challenge stand set aside and the matter remitted back to the trial court for fresh disposal after remitting back Ext.C2 series to the Commissioner and to get a comprehensive plan, showing the lie of the property based on title deeds, old survey numbers and re-survey numbers by separate plans. Thereafter, the trial court is directed to permit both parties to adduce evidence, if any, and to dispose of the case, afresh.

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Having noticed the fact that the suit is of the year 2012, there shall be a direction to the trial court to expedite the trial and dispose of the suit, at any rate, within a period of eight months from the date of production of a copy of this judgment.

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