IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 135 of 1998(G)
1. MADHAVI AMMA PADMAJA MONY
... Petitioner
Vs
1. LUKOSE ABRAHAM
... Respondent
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.B.MOHANLAL
The Hon'ble MR. Justice P.BHAVADASAN
Dated :22/07/2010
O R D E R
P. BHAVADASAN, J.
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S.A. No. 135 of 1998
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Dated this the 22nd day of July, 2010.
JUDGMENT
The plaintiff in O.S.544 of 1989, who had his
suit dismissed and which was confirmed in appeal is the
appellant before this court.
2. The suit was one for injunction. The
plaintiff claims to be the owner of 36 cents out of 37
cents comprised in Sy. No.1166/2 and 1166/1 with a
building therein. he claimed to have obtained it under
Exts.A1 and A2. The plaintiff claims that she had given
approximately one cent of land on the eastern extremity
of the plaint schedule in north-south direction for a way
and the remaining property is in her possession. She
wanted to put up a boundary wall along the western
boundary of the plaint schedule property leaving the
pathway portion. At that time the defendant obstructed
and that necessitated the suit.
S.A.135/1998. 2
3. The defendants resisted the suit. According to
them, the plaint description is wrong and this is a dubious
method adopted by the plaintiff to usurp their property.
Almost all the allegations in the plaint were controverted
and finally it was contended that the plaintiff is trying to
grab the property belonging to the defendants.
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.Ws.1 to 3 and the documents marked as Exts.A1 to A6
from the side of the plaintiff. The defendants had D.Ws.1 to
3 examined and Exts.B1 to B3 marked. Exts.C1 and C1(a)
are the commission report and plan. Exts.X1 and X2 are
third party exhibits.
5. The trial court found that the commission
report shows that the plaintiff owns 36 cents in Sy.
No.1166/2, a case which the plaintiff does not have.
According to the trial court, the plaintiff’s case was that she
was holding 30 cents in Sy. No.1166/2 and 7 cents in Sy.
No.1166/1. Since the commissioner has not noticed any
S.A.135/1998. 3
property in Sy. No.1166/1, it was found that the property has
not been properly located and accordingly the suit was
dismissed.
6. In the appeal filed by the plaintiff, the
appellate court adopted the same reasoning as that of the
trial court. Hence the Second Appeal.
7. The following questions of law have been raised
in the second appeal:
“a) When the plaintiff has proved her title
and possession over the plaint schedule property
on the strength of Exts.A1 to A3 and Exts.C1 and
C1(a) and when the defendants clearly admits that
they have no right or possession over plaint
schedule survey number, can the court dismiss
the suit which is only for injunction?
b) Can the curt dismiss the suit on the
ground that the commissioner has not correctly
located the plaint schedule property as described
in the plaint schedule?
c) When the plaintiff claims right over
Sy.No.1166 and when the defendants claim right
over another Sy.No.1167 lying adjacent to 1166, is
not the court bound to accept the boundary line
S.A.135/1998. 4
separating the two sy. nos as the boundary line
between defendants’ property and plaintiff’s
property?
d) Is not the plaintiff entitled to a decree on
the basis of her possession over the plaint
schedule property?”
8. Learned counsel appearing for the appellant
pointed out that both the courts below have misdirected
themselves both on facts and in law. It is true that the
commissioner has not properly located the properties. But
that has little significance in the nature of the case put
forward by the plaintiff. Learned counsel admitted that
going by the plaint, the claim of the plaintiff is that the
plaintiff had 30 cents in Sy. No.1166/2 and 7 cents in Sy.
No.1166/1. Learned counsel also conceded that
unfortunately the Commissioner did not locate the 7 cents
claimed by the plaintiff in Sy. No.1166/1. Learned counsel
pointed out that the major portion of the property is
comprised in Sy. No.1166/2 and the property in
Sy.No.1166/1 was in the possession of the members of the
plaintiff’s family. That being the position, all the properties
S.A.135/1998. 5
were lying contiguously and there is no demarcating
boundary between the properties of the members of the
plaintiff’s family. Therefore, the commissioner measured 37
cents in Sy. No.1166/2 only and located 36 cents as claimed
by the plaintiff. Learned counsel also pointed out that it has
nothing to do with the reliefs sought for in the plaint. The
relief sought for was for putting up of a boundary wall on the
western side of the plaint schedule property. The
commission sketch would show that there is a way on the
western side beyond the western boundary of the plaintiff’s
property. It is also contended that the defendants have no
case that they have any property in Sy. No.1166/2 or
1166/1. It is admitted that their property is comprised in Sy.
No.1167.
9. One may now have a look at the plan prepared
by the commissioner. The commissioner has located the
survey boundary between Sy. No.1166/2 and 1167 as AB
line. The Commissioner has also located the pathway that
lies immediately to the east of AB line and as shown in his
S.A.135/1998. 6
plan. Further east of that pathway, the western boundary of
the plaintiff is shown as CD line. It is true that the report
does not show the property claimed by the plaintiff in
Sy.No.1166/1. But as rightly pointed out by the learned
counsel for the appellant, that is not of much significance or
consequence at all. One has to notice that the claim in the
plaint is for injunction restraining the defendants from
obstructing the putting up of a boundary wall along the CD
line as shown in the report, which is the western boundary of
the plaintiff’s property. It is interesting to note that there is
already a basement. So, only when further construction was
attempted, obstruction was made. The commissioner has
located the property claimed by the defendants on the
western side of AB line. None of the parties has a case that
any portion of the property in Sy.No.1167 extends beyond
AB line on the east and likewise the property in Sy.Nos.
1166/1 and 1166/2 extends beyond AB line on the west. Of
course at the time of evidence, the defendants had come
forward with a case that they have property on the eastern
S.A.135/1998. 7
side of AB line.
10. The above claim of the defendants cannot be
accepted in the light of Ext.A5 survey plan produced by the
plaintiff. The plaintiff has also caused production of Exts.X1
and X2 re-survey plans relating to Sy. Nos. 1166 and 1167.
A comparison of the commission report along with these
plans shows that there is no error in the commission report
and plan.
11. Merely because the Commissioner had
committed a harmless error by not locating the 7 cents in
Sy. No.1166/1 that need not result in dismissal of the suit
especially when there is nothing to show that the defendants
have any property in Sy. Nos.1166/1 or 1166/2. Merely
because, the Commissioner has chosen to locate 36 cents in
Sy. No.1166/2, though the plaint schedule shows otherwise,
cannot work detriment to the plaintiff. One may recall that
the commission report also mentions that there is also a
basement along CD line.
S.A.135/1998. 8
12. There is no case for the defendants that by
putting up boundary wall on the western boundary, the
plaintiff is trying to usurp a portion of the way that lies
further west. As already noticed, the survey boundary of
Sy.No. 1167 on the east and Sy. Nos.1166/1 and 1166/2 on
the west is AB line. The compound wall is sought to be put
up on the eastern side of AB line. Now the defendants are
obstructing the putting up of the said wall.
In the result, this appeal is allowed, the judgment
and decree of the courts below are set aside and the
defendants are restrained by a permanent prohibitory
injunction from obstructing the plaintiff from putting up the
boundary wall along the CD line shown in Ext.C1(a) plan.
Ext.C1(a) plan shall form part of the decree. There will be
no order as to costs.
P. BHAVADASAN,
JUDGE
sb.