Allowed

Parvathi (Died,Lr Recorded) v. Thankappan

Kerala HC9 Feb 2024RSA/71/2018

Case brief

AI extract

What is this about?

Appeal against second appeal in property suit and counter claim involving boundary fixation, tree removal, and injunctions. High Court set aside lower judgments and granted mutual injunctions to prevent trespass and specific tree removal rights.

What did the court decide?

Set aside lower decrees; mutual injunctions restraining trespass on respective properties; coconut trees in plaintiffs' property to be kept intact; parties free to remove trees within their own identi

Parvathi (Died,Lr Recorded) Vs Thankappan — Property and Title | 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 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945

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RSA NO. 71 OF 2018

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AGAINST THE JUDGMENT AND DECREE IN A.S.NO.224/2012 OF ADDITIONAL

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DISTRICT COURT, IRINJALAKUDA

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AGAINST THE JUDGMENT AND DECREE IN O.S.NO.51/2010 OF PRINCIPAL SUB

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COURT,IRINJALAKUDA

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APPELLANTS/RESPONDENTS/PLAINTIFFS/COUNTER CLAIM DEFENDANTS:

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1 PARVATHI (DIED,LR RECORDED) AGED 70 YEARS

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PERINJANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR.

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2 SHANTHABAI D/O. PARVATHY, ERUMATHURUTHY HOUSE AGED 50 YEARS

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PERINJANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR.

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(IT IS RECORDED THAT APPELLANT NO.1 EXPIRED AND APPELLANT
NO.2 IS RECORDED AS THE LEGAL REPRESENTATIVE OF A1 AS PER
ORDER DATED 03.01.2024 VIDE MEMO DATED 03.01.2024)

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BY ADV G.SREEKUMAR (CHELUR)

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RESPONDENT/APPELLANT/DEFENDANT/COUNTER CLAIM PLAINTIFF:

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THANKAPPAN

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AGED 62 YEARS,S/O.KIZHAKEDATH VELAYUDHAN,
PERINJANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR,REP. BY
HIS POWER ATTORNEY HOLDER AND HIS WIFE
REMA,W/O.THANKAPPAN, PERINJANAM VILLAGE, KODUNGALLUR
TALUK, THRISSUR-680 001

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BY ADV SRI.K.G.BALASUBRAMANIAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
23.01.2024, THE COURT ON 9.2.2024 DELIVERED THE FOLLOWING:

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RSA NO. 71 OF 2018 2

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JUDGMENT

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Dated this the 9^th day of February, 2024

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Plaintiffs in O.S.No.51/2010 on the files of the

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Principal Sub Court, Irinjalakuda, have preferred this appeal under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, challenging the decree and judgment in A.S.No.224/2012 on the files of the Additional District Court, Irinjalakuda, dated 15.9.2017, arose out of O.S.No.51/2010.

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The sole respondent is the defendant in the suit.

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Heard the matter in detail on substantial

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questions of law framed by my learned predecessor, as per order, dated 16.1.2018, as under:

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“1. Is it not an accepted principle in law, in

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the absence of there being any prayer for

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recovery of possession on the strength of

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title, that no fixation would be had by

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taking the fixation to be a short cut

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RSA NO. 71 OF 2018 3

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method of obtaining property which is impermissible in law?

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2. Is it not case where the lower appellate court has acted with material illegality and irregularity thus having substantial questions of law to be determined by this Hon'ble Court? How could the lower appellate court grant a permanent prohibitory injunction against the appellants over the way in question ?”

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I shall refer the parties in this appeal as

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‘plaintiffs’ and ‘defendant’, for convenience.

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A suit, seeking permanent prohibitory injunction was filed by the plaintiffs, restraining the defendant from trespassing upon the plaint schedule property and to widen the 3 ft. width pathway available through the western side of the same. According to the plaintiffs, plaintiffs are the owners of the plaint A schedule property and the defendant has no manner of right over the same, so as to widen the pathway on the western side.

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Defendant filed written statement along with

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counter claim. The width of the pathway, as contended as 3 ft. on the western side, was denied on the specific contention that the width of the pathway is 8 ft. Measurement of both items of properties with the help of Surveyor, fixation of boundary of the plaint schedule property with that of the counter claim schedule property also was sought for. It is contended in the counter claim that the defendant has right to recover the encroached portion and further, the defendant has apprehension of encroachment over the 8 ft. pathway available. Accordingly, apart from the relief of fixation of boundary, recovery of possession, on the allegation that a portion of the counter claim schedule property was encroached upon by the plaintiffs and also prohibitory injunction against trespass upon the counter claim schedule property, were sought for.

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The trial court raised necessary issues and recorded evidence. PW1 and PW2 were examined and Exts.A1 to A3 were marked on the side of the plaintiffs. DW1 and DW2 were examined and Exts.B1 and B2 were

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marked on the side of the defendant. Exts.C1 and C2 series also were marked.

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On appreciation of evidence after addressing the rival claims, the learned Sub Judge dismissed the suit and partly allowed the counter claim and thereby, the plaintiffs and their men were restrained from trespassing to 8 ft. width counter claim way and causing obstruction to the peaceful use of the same or by reducing the width of the same, in any manner.

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Challenging the above verdict, the defendant filed A.S.No.224/2012 before the Additional District Court, Irinjalakuda. The learned Additional District Judge heard the matter and allowed the appeal in part as under:

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“In the result, the appeal is allowed in part. The judgment and decree passed in the suit remains unaltered. The judgment and decree passed in the counter claim in O.S.51/2010 is set aside. The eastern boundary of the counter claim schedule property and the western boundary of the plaint schedule property are fixed in accordance with the boundaries shown in Ext.C2(a) sketch. Commission report and sketch shall form part of the decree. The

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plaintiff is restrained by a permanent prohibitory injunction from trespassing into the counter claim property. The prayer for mandatory injunction is rejected. In the facts and circumstance of the case there is no order as to costs.”

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While impeaching the correctness of the verdicts of the courts below, the learned counsel for the plaintiffs submitted that, the boundary, as per Ext.C2 (a) sketch, relied on by the appellate court, is not in serious dispute. But, according to the learned counsel, there are trees lying in the plaint schedule property and in view of the verdict of the appellate court, the plaintiffs would cut and remove the trees and the same would prejudice the right of the plaintiffs. It is also submitted that, even though the first appellate court found apprehension at the instance of the defendant in the matter of reduction of the way in existence, the first appellate court and the trial court failed to appreciate the apprehension of the plaintiffs in the matter of trespass on the plaint schedule property.

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Refuting this contention, the learned counsel for

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the defendant submitted that, since the appellate court found that the trees are standing in the way located as per Ext.C2(a) sketch, the defendant, being the owner of the counter claim property/way, had got every right to cut and remove the trees standing in this property and therefore, the mandatory injunction was disallowed by the first appellate court. According to the learned counsel for the defendant, if there is any modification in the verdict of the appellate court being considered, the same would prejudice the right of the defendant to remove the trees situated in the way, as found by the appellate court.

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While addressing the rival contentions, as per the plaint description, plaint schedule property is 12 cent of property and as per Ext.A1 title deed also, the plaint schedule property is 12 cent. As per the schedule description in the counter claim, the same is property, having an extent of 25.5 cent in Re-Sy.No.29/7, covered by sale deed No.1131/1998. As per Ext.C2(a), the Commissioner located 25 cent of property as blue shaded portion, as that of the defendant and on southern side of

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the said property, the yellow shaded portion, having an extent of 12 cent, is located as property of the plaintiffs and on the western side of the plaintiffs property, rose shaded portion, having an extent of 1.363 cent and 0.081 cent in red shaded portion jointly located as way claimed by the defendant. According to the plaintiffs, plaintiffs perfected title in respect of 12 cent of property, as per Ext.A1 title deed. The case put up by the defendant by way of counter claim is that, the plaintiffs sought to fix the boundary of the counter claim schedule property and sought recovery of possession also. Further, there was prayer to demolish the fence put up by the plaintiffs after encroaching the property of the defendant. As per Ext.C2(a), the Commissioner located the width of the way as 2.40 meters on the northern side and 2.50 meters on the southern side. The length of the rose shaded portion is located as 23 meters and the length of the red shaded portion is located as 1 metre on the western side and 1.70 meters on the eastern side.

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There is no dispute with regard to the location of

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the properties based on Ext.C2(a) plan. Therefore, Ext.C2(a) plan, relied on by the trial court as well as the appellate court in this matter, is liable to be accepted to address the controversy.

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It is to be held that the properties located as per Ext.C2(a), are the properties of the plaintiffs and the defendant and the way, as discussed. It is true that the defendant sought mandatory injunction directing the plaintiffs to demolish the boundary trees found in the counter claim pathway. It was observed by the first appellate court that the defendant did not know, who planted the trees and nobody could be aware who planted the same. Accordingly, the first appellate court held that, it could not be found that the plaintiffs planted the trees therein. Therefore, the mandatory injunction could not be allowed and thereby, the first appellate court modified the decree and fixed the boundary of the properties in tune with Ext.C2(a) sketch and found that the defendant, being the owner of the counter claim property, had got every right to cut and remove the trees planted in the property,

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while disallowing the prayer for mandatory injunction.

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The learned counsel for the plaintiffs argued that, as per Ext.C1(a) attached to Ext.C1 report, filed for the first instance as on 6.2.2010, the trees were located in the property of the plaintiffs and it has been reported by the Commissioner that, separating the plaint schedule property with the pathway on the western side, fence formed of gliricidia sepium trees. In Ext.C2 report, in paragraph No.5, it is reported by the Commissioner that, on the western side of the plaint schedule property and on the eastern side of the counter claim schedule property, 3 coconut trees, having average age in between 25 to 30 years, are standing. It is specified that the above coconut trees are standing 0.80, 1.30 and 1.6 metre away from the eastern boundary of the counter claim schedule property and on the western boundary of the plaint schedule property.

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On perusal of Ext.C1 report and Ext.C1(a) rough sketch, it would appear that the coconut trees are standing in the property of the plaintiffs and not in the

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counter claim schedule property.

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In this matter, the substantial question of law raised is, without there being any prayer for recovery of possession on the strength of title, whether fixation to a short cut method of obtaining property, though the same is impermissible in law ? In this matter, as per Ext.C2 report, no encroachment found and accordingly, the Commissioner reported the boundary in existence and also

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found that the respective properties are in possession of the plaintiffs and the defendant. Therefore, the facts of the present case do not suggest that, this is a case, where a suit was filed without recovery of possession or fixation of boundary. So, the first question of law raised has no relevance in this particular case.

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Regarding the second question of law, the same is to the effect that, how could the lower appellate court grant permanent prohibitory injunction against the plaintiffs over the way in question? In the instant case, as I have already pointed out, plaintiffs filed the suit, apprehending trespass upon their property by the

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defendant for the purpose of widening the pathway on its western side. The defendant filed suit for fixation of boundary, recovery of possession and prohibitory injunction.

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The trial court and the appellate court considered the rival claims, but failed to appreciate the case of the plaintiffs as well as the defendant in the right perspective. In this case, as per Ext.C2(a) plan, as I have already pointed out, the property of the plaintiffs is 12 cent of property, located as yellow shaded plot. As far as the said identification is concerned, the defendant has no dispute. The blue shaded portion, having an extent of 25 cent, is the property of the defendant and 1.363 cent rose shaded portion + 0.081 cent red shaded portion together is the way claimed by the defendant. Therefore, in order to redress the grievance of the parties, the verdicts of the trial court and the appellate court require interference, after setting aside the same.

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In the result, this Regular Second Appeal is allowed. The decree and judgment of the trial court as well as the

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appellate court, stand set aside and the suit and counter claim are decreed as under:

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i. The defendant, his men and agents are restrained from trespassing upon the plaint schedule property located as yellow shaded portion, having an extent of 12 cent in Ext.C2(a) plan, in any manner, so as to obstruct the use and enjoyment of the same by the plaintiffs.

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ii. The plaintiffs/counter claim defendant, are restrained from encroaching upon the blue shaded portion, having an extent of 25 cent, rose shaded portion, having an extent of 1.363 cent and the red shaded portion 0.081 cent in Ext.C2(a) plan, in any manner, so as to obstruct the use and enjoyment of the same by the defendant.

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iii. Since it is discernible from evidence that, coconut trees are lying inside the plaint schedule property, the same shall be kept intact and the defendant has no manner of right to cut and remove the same. At the same time, both parties are at liberty to cut and remove the trees, if any, standing in the properties, as shown in

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Ext.C2(a) plan, as discussed hereinabove.

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iv. Considering the nature of contentions, parties are directed to suffer their respective costs.

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Registry is directed to inform this matter to the trial

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court as well as the appellate court, forthwith.

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Sd/- A. BADHARUDEEN JUDGE

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Parvathi (Died,Lr Recorded) v. Thankappan

Case brief

What is this about?

What did the court decide?

Parvathi (Died,Lr Recorded) v. Thankappan

Case brief

What is this about?

What did the court decide?

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Issues for consideration

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