IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 39 of 1994()
1. SANKAR
... Petitioner
Vs
1. JANARDHANAN
... Respondent
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :11/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
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S.A.No. 39 OF 1994
............................................
DATED THIS THE 11th DAY OF JULY, 2007
JUDGMENT
Plaintiff in O.S.418 of 1987 on the file of Munsiff Court,
Wadakkancherry is the appellant. Defendants are respondents.
Appellant and respondents 1 and 2 are direct brothers. Third
respondent is the wife of second respondent. Appellant
instituted the suit seeking a decree for permanent prohibitory
injunction in respect of plaint A, B and C schedule properties and
for realisation of Rs.500/- being half of the amount realised by
second respondent by sale of fishes caught from plaint B
schedule tank. Plaint A schedule property is 66.5 cents in
Survey No.65 /4 of Kariyannor Village. Plaint B schedule
property is half portion of the tank falling in plaint A schedule
property. Plaint C schedule property is the fence constructed on
the north-eastern boundary of plaint A schedule property. Plaint
A schedule property along with the other properties belonging to
the family of appellant and respondents 1 and 2 were divided
under Ext.A1 partition deed dated 7.9.1971. Under Ext.A1
partition deed, as item No.6, appellant was alloted plaint A
schedule property. As item No.23, the remaining western
SA 39/1994 2
portion of the said property was alloted to first respondent who
was then a minor. Subsequently, first respondent transferred his
right in favour of second respondent who in turn settled it in
favour of third respondent his wife under Ext.B2 settlement
deed. Appellant instituted the suit seeking a decree for
injunction contending that respondents are raising claim over
plaint A schedule property and obstructing construction of plaint
C schedule fence and also contending that they are utilising the
fish from the tank without allowing appellant to catch the fish.
Respondents in their written statement admitted the right, title
and possession of appellant to plaint A schedule property. It was
contended that the disputed B schedule tank is not part of the
property alloted to appellant and therefore appellant is not
entitled to claim any decree for injunction or value of the fish
allegedly caught by second respondent. It was also contended
that using influence in police, appellant constructed a fence on
the north eastern side of plaint A schedule property and
appellant has no right over that portion of the property and
therefore appellant is not entitled to the decree for injunction.
SA 39/1994 3
2. Learned Munsiff on the evidence of PW 1 to 4, DW1 and
Exts.A1 to A5 and Exts.B1 and B2 and Ext.C1 and C1(a) granted
a decree for permanent prohibitory injunction in respect of plaint
A and C schedule properties but refused the decree in respect of
plaint B schedule property holding that appellant did not
establish his right to plaint B schedule tank. Appellant
challenged the decree and judgment before District Court,
Thrissur in A.S. 228 of 1991. Respondents filed a cross objection
in the appeal contending that trial court should not have granted
a decree in respect of plaint A and C schedule properties also.
Learned District Judge, on reappreciation of evidence, found that
under Ext.A1 item No.6 was alloted to appellant and it does not
take in the disputed B schedule tank and therefore finding of
learned Munsiff that appellant is not entitled to the decree in
respect of plaint B schedule property is correct. Learned District
Judge also confirmed the findings of learned Munsiff that
appellant established his possession of plaint A schedule
property and that plaint C schedule fence is the eastern
boundary of plaint A schedule property and appellant established
SA 39/1994 4
his possession of plaint C schedule fence also. But holding that
appellant did not establish cause of action in respect of plaint A
or C schedule property, appellant is not entitled to encroach
upon others property and construct a fence, decree granted by
the trial court was set aside and suit was dismissed. It is
challenged in the second appeal.
3. The appeal was admitted formulating the following
substantial questions of law.
1)When specific allotment of shares have been made under
Ext.A1 partition deed and the tank was not included as an item
alloted to any of the sharers, is it not indicative of the fact that it
was intended to be kept in common and if so whether courts
below were right in declining the relief to grant a decree in
respect of plaint B schedule property.
2)When the trial court and first appellate court found that
appellant established possession of plaint A and C schedule
property and trial court granted a decree for injunction, whether
first appellate court was justified in interfering with the decree.
4. Learned counsel appearing for appellant and respondent
SA 39/1994 5
were heard. The argument of the learned counsel appearing for
appellant was that when even in the written statement
respondent did not dispute the right of appellant over item No.6
of the property alloted to him, which is plaint A schedule
property and trial court and first appellate court confirmed that
appellant established his possession of that property, first
appellate court should not have interfered with the discretion
exercised by the trial court holding that there is no cause of
action to grant the decree. It was argued that a reading of the
written statement filed by respondents establish that they are
raising a claim over the property in the possession of the
appellant contending that appellant put up the fence
encroaching upon their property and as the appellant has
established his possession of the property which was upheld by
the courts below, appellant is entitled to the decree for
injunction. It was also argued that even in Ext.B2 settlement
deed executed by second respondent, the assignee of first
respondent to whom the western property was alloted under
Ext.A1 as item No.23 did not mention existence of the tank in the
SA 39/1994 6
property sold and it is to be taken that plaint B schedule tank is
not included in the property of respondents and therefore the
claim of appellant that he has half right over plaint B schedule
tank should have been upheld and a decree should have been
granted.
5. Learned counsel appearing for respondents argued
that without establishing the identity of plaint schedule property,
with reference to Ext.A1 partition deed, appellant is not entitled
to a decree as plaint C schedule fence is constructed in a portion
of the property not alloted to the appellant under Ext.A1
partition deed. It was therefore argued that there is no reason to
interfere with the decree granted by first appellate court.
6. Under Ext.A1, as item No.6, plaint A schedule property
was alloted to appellant. As item No.23, the property which lies
to the west of plaint A schedule property, which is the western
portion of the property divided thereunder, was alloted to first
respondent who subsequently transferred it to second
respondent, who in turn settled it in favour of his wife under
Ext.B2 settlement deed. Neither Ext.B2 settlement deed nor
SA 39/1994 7
Ext.A1 partition deed show existence of the tank. Therefore
with reference to Ext.A1, the right over plaint B schedule tank
cannot be fixed. As the property alloted to appellant and first
respondent under Ext.A1 are the eastern and western portion of
the property divided thereunder the question whether the tank is
included in the property alloted to appellant or first respondent
or is in both properties, can be fixed only if the properties are
identifed with reference to the division effected under Ext.A1.
Though a Commission was taken out and Commissioner
submitted report and plan, Commissioner has not identified both
the properties in accordance with the description and
boundaries given in Ext.A1. Therefore on the evidence it is not
possible to hold that the disputed tank is included either in the
property alloted to appellant or first respondent, which now
belong to third respondent. Therefore appellant is not entitled to
a decree in respect of plaint B schedule tank. Even if the
argument of appellant that as the tank was not alloted to any of
the sharers it is to be taken as kept in common is accepted,
being a co-owner appellant is not entitled to a decree for
SA 39/1994 8
injunction against other co-owner and therefore courts below
rightly refused to grant a decree in respect of plaint B schedule
tank.
7. Though plaint A schedule property was not identified
with reference to Ext.A1 partition deed, the fact that the entire
plaint A schedule property is in possession of appellant was
found by trial court as well as by first appellate court. Though
respondents contended that appellant has constructed plaint C
schedule fence after encroaching upon a portion of the
property, the factum of settled possession was admitted. Insuch
circumstances, trial court granted a decree in favour of
appellant. First appellate court interfered with the decree,
confirming the finding of possession on the ground that there is
no reasonable apprehension of trespass. As rightly pointed out
by learned counsel appearing for appellant, a reading of the
written statement shows that respondents have raised a case
that appellant is not entitled to reconstruct the fence alleging
that he has no right to do so. As settled possession was
established and respondents have raised a dispute on the right
SA 39/1994 9
of appellant, it cannot be said that there is no reasonable
apprehension of trespass or obstruction as alleged by appellant.
If so, first appellate court should not have interfered with the
discretion rightly exercised by the trial court. The decree and
judgment passed by first appellate court with respect to plaint A
and C schedule properties are therefore set aside and the decree
granted by trial court is restored.
The appeal is allowed. The decree and judgment passed by
District court in A.S. 228 of 1991 are set aside and the decree
granted by Munsiff in O.S.418 of 1987 is restored. No cost.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-