IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 562 of 2006()
1. NARENDRAN NAIR,
... Petitioner
2. DEVAKI AMMA SUBHADRA AMMA,
Vs
1. KUNJUKRISHNA PILLAI ASHOK KUMAR,
... Respondent
2. KOCHUMANI AMMA JAYALEKSHMI, OF DO.
3. RADHADEVI AMMA, OF DO.
4. KUNJUKRISHNAPILLAI ARAVINDAKUMAR,
4. KUNJUKRISHNAPILLAI ARAVINDAKUMAR,
For Petitioner :SRI.B.KRISHNA MANI
For Respondent :SRI.P.B.SURESH KUMAR
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :18/08/2008
O R D E R
K.P. Balachandran, J.
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R.S.A.No.562 of 2006
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JUDGMENT
Plaintiffs in O.S.No.673/97 on the file of the
Munsiff’s Court, Karunagappally are the appellants
and the respondents are defendants 1 to 4 in the
said suit.
2. Appellants/plaintiffs instituted O.S.No.
673/97 aforesaid as against defendants 1 to 5 for
fixation of boundary of the suit properties and for
injunction, both prohibitory and mandatory, inter
alia, on the allegations that the plaintiffs are
husband and wife; that defendants 1, 2 and 4 are
brothers and sister and the third defendant is the
wife of the first defendant; that they obtained
plaint schedule item No.1 property and the building
situated therein vide Sale Deed No.2791/1956; that
the second plaintiff obtained title and possession
over plaint schedule item No.2 property as per
Partition Deed No.292/1985; that the scheduled
properties are lying as a compact block; that the
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properties situated on the southern side of plaint
schedule item No.1 property and south-eastern side
of plaint schedule item No.2 property belong to
defendants 1 to 4; that the properties situated on
the northern side of plaint schedule item No.1
property and eastern side of plaint schedule item
No.2 property belong to the fifth defendant; that
the scheduled properties and the properties of the
defendants originally belonged to Mullassery
Kaleekal family and plaintiffs and defendants
obtained their respective properties as per the
partition deed executed by the members of the
family and also as per the sale deed
aforementioned; that since the plaintiffs and
defendants are close relatives, no boundary or
fencing was put up, separating the scheduled
properties and the adjoining properties belonging
to the defendants; that the plaintiffs are
permanently residing in Thiruvananthapuram for the
last so many years and they occasionally come to
the scheduled properties; that while so, on
RSA 562/06 3
9.10.1997,when the plaintiffs visited the scheduled
properties, they found that some southern portion
of the foundation basement constructed on the
eastern side of plaint schedule item No.1 property
was demolished and the defendants have trespassed
into southern portion of plaint schedule item No.1
and eastern portion of plaint schedule item No.2
properties and extended their building into plaint
schedule item No.1 property and have also
constructed a new fencing after removing the survey
stones; that on enquiry, it was found that the
first defendant has done the same; that since the
second defendant is the southern property owner of
plaint schedule item No.1 property, he is made a
party to the suit and that though the plaintiffs
demanded the defendants to measure and fix the
southern boundary of plaint schedule item No.1
property and eastern boundary of plaint schedule
item No.2 property and remove the portion of the
unauthorisedly constructed building and fencing,
they were not amenable for the same. Hence the
RSA 562/06 4
suit for fixation of southern boundary of plaint
schedule item No.1 property and eastern boundary of
plaint schedule item No.2 property and also for a
mandatory injunction directing the defendants to
demolish the unauthorisedly constructed building
portion as also the fencing from the scheduled
properties and to have vacant possession of the
said portion and in case the defendants fail to do
so, they prayed for a decree allowing recovery of
possession of the same and also for a permanent
injunction restraining the defendants from
trespassing into the plaint schedule properties or
committing any acts of waste or mischief therein.
3. The fourth defendant remained absent and ex
parte.
4. Defendants 1 and 2 filed a joint written
statement and the third defendant filed a separate
written statement containing almost the same
contentions raised in the written statement of
defendants 1 and 2. The fifth defendant also filed
a separate written statement.
RSA 562/06 5
5. The contentions of defendants 1 and 2 are
that for fixation of boundary of plaint schedule
properties, plaintiffs have filed O.S.No.751/88
before the lower appellate court and in that case,
as per the application of the plaintiffs, an
Advocate Commissioner, with the help of the Taluk
Surveyor, measured the properties and fixed the
boundaries and hence the present suit is not
maintainable; that separating the plaint schedule
properties and the adjoining properties of the
defendants, there is boundary and fencing of more
than forty years old, but there is no boundary in
between the building of the plaintiffs and
defendants; that about six to seven years back, the
plaintiffs trespassed into the properties of the
defendants and constructed a granite foundation of
seven metre length and forty centimetre width; that
from the north-eastern corner of the said
foundation, there is fencing towards east; that
there is also survey stones separating the plaint
schedule properties and the properties of the
RSA 562/06 6
defendants; that the allegation that on 9.10.1997,
when the plaintiffs came to the plaint schedule
properties, they found that the eastern boundary of
the schedule properties was demolished and
defendants had trespassed into the scheduled
properties and extended some portion of the
building into the scheduled properties is
incorrect; that the terraced portion of the
building of the family house of the defendants was
constructed in the properties of the defendants;
that the allegation that the plaintiffs demanded
the defendants to measure out and fix the
boundaries of the scheduled properties is
incorrect; that the re-survey in the area has
become final on 1.5.1997 and so the plaintiffs have
no right to fix the boundaries of the plaint
schedule properties on the basis of the old survey
plan; that if the plaintiffs have any objection
against the re-survey plan, they ought to have
filed objections to the re-survey authorities; that
if at all any portion of the building of the
RSA 562/06 7
defendants is abutting into the scheduled
properties, the right of the plaintiffs to demolish
the same is barred by limitation and that the
plaintiffs are not entitled to any relief and the
suit deserves to be dismissed.
6. The fifth defendant contended that there is
a strong and well defined boundary from 1102 M.E.
onwards, separating the scheduled properties and
her property; that she obtained six cents of
property on the northern side of the scheduled
properties as per Sale Deed No.1000/1983; that she
obtained another six cents of property with one
cent of excess land as per Sale Deed No.1402/1992;
that the said properties are lying in a compact
block and is comprised in R.S.No.430/7, having an
extent of six ares; that she is in possession of
the said property in continuation of possession by
her predecessors in interest; that while so, in
1988, the plaintiffs have filed suit O.S.No.751/88
against her husband for fixation of boundary and
for recovery of possession on the allegation that
RSA 562/06 8
her husband trespassed into the scheduled
properties and took forcible possession of about
two cents of property; that a Commissioner had been
deputed in that case and he fixed the boundaries of
the properties and also stated that 200 sq.links of
plaint schedule properties was in possession of her
husband; that the suit was decreed in favour of the
plaintiffs allowing them to recover 200 sq. links
of property from her husband; that against the
judgment and decree, her husband filed A.S.No.73/94
before the District Court, Kollam and that was
dismissed; that the said judgment was assailed in
S.A.No.13/98 before this Court and this Court
allowed the second appeal and set aside the
judgments of the courts below and dismissed the
suit; that though the plaintiffs have preferred
S.L.P.No.7020/99 before the Supreme Court, that was
also dismissed; that the plaintiffs, in the
circumstances, have no right to institute the
present suit against her; that the rights of the
plaintiffs, if any, is lost by adverse possession
RSA 562/06 9
and limitation and that the plaintiffs have no
cause of action against her. On the above
contentions, she prayed for a dismissal of the
suit.
7. The trial court raised necessary issues for
trial and considering the evidence adduced in the
case, which consisted of oral evidence of PWs 1 and
2 and documentary evidence Exhibits A1, A2, B1 to
B5 and C1 to C4, decreed the suit in part, fixing
the southern boundary of plaint schedule item No.1
property as F-G line and eastern boundary of plaint
schedule item No.2 property as B-F line in Exhibit
C4 plan and allowing the plaintiffs to put up a
strong boundary or compound wall through the F-G
and B-F lines in Exhibit C4 plan and restraining
the defendants by a decree of permanent prohibitory
injunction from trespassing into plaint schedule
properties, shown as FGHC and ABFCDE plots in
Exhibit C4 plan and from committing any acts of
waste therein. The prayer for mandatory injunction
was dismissed. Being not satisfied with the decree,
RSA 562/06 10
partly decreeing the suit, plaintiffs preferred
A.S.No.90/03 before the first appellate court and
the appellate court dismissed the appeal confirming
the correctness of the judgment and decree passed
by the trial court. Hence this Regular Second
Appeal.
8. It is vehemently contended before me by the
learned counsel for the appellants that though the
scheduled properties were described in the plaint
schedule originally assigning its old survey
numbers, the plaint was got amended incorporating
the corresponding re-survey numbers, as re-survey
was completed in the locality and that consequent
thereon, I.A.No.2266/02 was filed seeking for
Commissioner being deputed to have the boundaries
fixed as per re-survey plan, but that was dismissed
by the trial court and thereafter decree was passed
in the said suit conducting a trial of the case.
According to him, the boundary fixed as per the old
survey plan is not acceptable and the re-survey
plan, which has become final, ought to have been
RSA 562/06 11
made the basis for fixing the boundary of the
scheduled properties. The request of the learned
counsel for the appellants is to have Exhibits C2
to C4 set aside and the case remitted back to fix
the boundary as per the re-survey plan.
9. Plaintiffs moved commission application to
measure out the properties on the basis of the old
survey plan. The trial court is seen to have
observed that at the time of hearing of the
commission application, the learned counsel
appearing for the plaintiffs conceded that the
properties need be measured as per the old survey
plan only. In Exhibit C2 mahazar, the Commissioner
has categorically stated that the Taluk Surveyor
came with old as well as re-survey plans for
measuring the properties and at that time, the
plaintiffs insisted that the properties need be
measured on the basis of the old survey plan only.
It was, subsequently, that the plaintiffs have
included the re-survey number also in the plaint
schedule by amending the plaint.
RSA 562/06 12
10. The trial court was of the opinion that
since the plaintiffs have conceded that the
properties need be measured only as per the old
survey plan, the plaintiffs cannot now turn round
and say that Exhibits C2 to C4 are to be set aside
and a fresh commission issued to measure out the
properties as per the re-survey plan. The trial
court also observed that though an argument was
advanced even before that court to have a re-survey
conducted as per the re-survey plan, the first
plaintiff has admitted, when examined as PW1, that
he has no objection in fixing the boundaries of the
scheduled properties as per the plan submitted by
the Commissioner. It is also observed by the trial
court that when the case was taken up for argument,
the learned counsel appearing for defendants 1 to 3
also submitted that for avoiding prolonged
litigation, they have no objection in decreeing the
suit accepting Exhibits C2 to C4 commission report,
mahazar and plan. It was in view of the admission
of PW1 in cross examination that already there
RSA 562/06 13
exists a strong boundary, separating the plaint
schedule properties and the northern property of
the fifth defendant and there is no dispute
regarding that boundary, that the trial court found
that there is no necessity to put up a boundary
separating the plaint schedule properties and the
northern property of the fifth defendant. It was
further observed that O.S.No.751/88, filed by the
plaintiffs for fixing the boundary of the scheduled
properties, separating the northern property of the
fifth defendant, though was decreed by the trial
court and A.S.No.73/94 filed therefrom was
dismissed by the first appellate court confirming
the judgment of the trial court, S.A.No.13/98 filed
before this Court was allowed and the decree
granted by the trial court was set aside and the
special leave petition filed before the Apex Court
was also dismissed and for those reasons, the
plaintiffs are not entitled to fix the boundaries
separating the plaint schedule properties and the
northern property of the fifth defendant. It is to
RSA 562/06 14
substantiate the contention of the fifth defendant
that Exhibits B1 to B5 documents were produced
before the trial court. The trial court found that
Exhibit B2 plan showed that at the time of filing
of Exhibit B1 suit, the plaintiffs were in
possession of only thirty cents of property in Sy.
No.158/95 and twenty three cents of property in Sy.
No.158/96 and that Exhibit B2 had not been
challenged by the plaintiffs. It is clear from
Exhibits B3 to B5, copies of judgments, that though
O.S.No.751/88 was decreed by the trial court and by
the first appellate court, that was finally being
dismissed by this Court and therefore, the suit as
against the fifth defendant is not maintainable and
no relief can be granted against the fifth
defendant. The appellants accepted the said verdict
of the trial court and has filed appeal before the
first appellate court impleading only defendants 1
to 4, excluding the fifth defendant.
11. It is also pointed out by the counsel for
the appellants that before the trial court, counsel
RSA 562/06 15
for the plaintiffs also submitted that no relief is
required as against the fifth defendant. As
observed earlier, it was in view of the admission
of PW1 that it is enough that boundary is fixed
accepting Exhibit C4 plan and in view of the
submission of the counsel for defendants 1 to 4
that they have no objection in decreeing the suit
accepting Exhibit C4 plan, that the court below
accepted Exhibit C4 plan and passed a decree in
terms thereof as against defendants 1 to 4 allowing
the plaintiffs to put up a boundary separating the
plaint schedule properties from the properties of
defendants 1 to 4, fixing the southern boundary of
plaint schedule item No.1 property as F-G line and
eastern boundary of plaint schedule item No.2
property as B-F line. In the circumstances, there
is no merit in further advancing argument that the
properties should have been measured and boundary
fixed on the basis of the re-survey plan, unless it
be for reason of desire to grab some more
properties from the possession of defendants 1 to
RSA 562/06 16
4.
There is no merit at all in this Regular Second
Appeal and this Regular Second is dismissed in
limine, refusing admission.
18th August, 2008 (K.P.Balachandran, Judge)
tkv