Mangalath Thomas vs Ezhumayil Chacko Thomas

Thomas P. Joseph, J.—Following are the substantial questions of law framed for a decision in this Second Appeal arising from the judgment and decree of the Additional Sub Court, Thalassery in A.S. No.75 of 2003 reversing the dismissal of O.S. No.340 of 1997 by the Munsiff''s Court, Koothuparamba.

(i) Whether on the facts and circumstances of the case 1st appellate court is justified in holding that the plaintiff is entitled to get a decree for injunction in respect of the plaint schedule property which is situated in R.S. No.497 when admittedly the plaintiff has no property in R.S. No.498 and the disputed property is situated in R.S. No.498?

(ii) Whether 1st appellate court is justified in granting a decree for permanent prohibitory injunction without entering into the finding that plaintiff is having possession over the disputed road?

(iii) Whether on facts and circumstances of the case 1st appellate court is justified in granting a decree of injunction simply on the ground that there is no evidence to show that the surrender of land for the formation of road is from the defendant''s property?

(iv) Whether in a suit for injunction based on possession a decree can be granted without proving the possession over the disputed road by the plaintiff, irrespective of the proof of possession over the same by the defendant?

(v) Is the 1st appellant court correct in discarding Ext.X1 road register, which is a public document which would show that for the purpose of constructing the road consent was obtained from the defendant and also Ext.B4 letter issued by the President of the Kottiyoor Grama Panchayat to that effect?

(vi) Is the court below legally correct in holding that the road is not vested in Panchayat and it is not a public road without a prayer for declaration in the plaint to that effect especially in view of the documentary evidence such as Exts. X1, X2 & B4 which would show that is a Panchayat road and belongs to Panchayat?

(vii) Whether 1st appellate court is justified in arriving at a finding with respect to the ownership of the road and against the Panchayat without framing an issue on that ground and without the presence of the Panchayat in the party array?

(viii) Whether on the facts and circumstances of the case the suit as framed is maintainable without a prayer for declaration and without impleading the Panchayat in the party array?

Respondent-plaintiff claimed that suit property comprised in Sy. No. 497 came into his possession as per an oral lease of the year 1960 followed by his obtaining Ext. A1, purchase certificate dated 06.06.1975. He claimed to be in possession of the suit property and produced Ext. A2 series, receipts for payment of revenue. The said property is bounded by thodu on the western side. On the further west of the thodu is the property of appellant. A road was constructed along the eastern side of the thodu and western portion of the suit property. At the time of formation of the road, there happened to be trees on he side of the road (east of the thodu) which formed part of the suit property belonging to the respondent. Alleging that appellant attempted to trespass into the suit property and cut down the trees, respondent filed the suit for a decree for injunction restraining the appellants from trespassing into the plaint schedule property, committing waste, felling of bamboo clusters and trees and interfering with respondent''s possession and enjoyment of the suit property.

Appellant contended that road and thodu referred above form part of the property belonging to him as per Ext.B1 and comprised in Sy. No. 498. He produced Ext. B2, receipt for payment of revenue and Ext. B3, provisional plan of property comprised in Sy. No. 498. Learned counsel has placed reliance on Exts. X1 to X2(a) and the evidence of D.W.2.

Trial court based on the evidence of respondent as P.W1 in cross-examination that his claim is only in Sy. No. 497 and finding that as per Ext. C4, some of the disputed trees stand in Sy. No.498, non-suited the respondent. First appellate court after consideration of the evidence concluded that respondent is in possession of the suit property upto the thodu on the western side and decreed the suit as prayed for. That judgment and decree are under challenge in this Appeal on the above substantial questions of law

Learned counsel contended that Ext. C4, provisional plan prepared by the Advocate Commissioner with the assistance of a Surveyor would show that western portion of the road falls in Sy. No. 498 and hence claim of respondent for possession over that portion of the road cannot stand. It is also the case that even the cause of action alleged is attempt to cut down bamboo clusters and trees and Ext. C4 would show that those trees are standing in the property comprised in Sy. No. 498. Learned counsel invited my attention to the decision in Savithri Amma v. Padmavathi Amma (1990 (1) KLT 887) to contend that there is no invariable rule that where there is conflict between extent, survey number, boundary, etc., one should prevail over the other and it is a matter to be decided on a true construction of the document. It is contended that first appellate court has granted relief without even the Panchayat on the party array notwithstanding Exts. X1 to X2(a).

Learned counsel for respondent contended that it was merely on the strength of a stray answer given by the respondent as P.W.1 that his property is comprised in Sy. No.487 that trial court dismissed the suit. It is pointed out by the learned counsel from Exts.A1 and B1 that appellant cannot lay hands on any inch of land on the east of the thodu. It is also pointed out by the learned counsel that western boundary of the suit property is thodu. My attention is drawn to Exts. A3, A7 and A8.

It is not disputed that respondent had filed O.S. No. 2 of 1994 against the local authority concerning the road which according to the respondent was formed through the western portion of his property, the western boundary of his property being the thodu. Grievance of respondent in O.S. No. 2 of 1994 was that though the road in question passes through the suit property and is part of the said property, the Panchayat is taking steps to include it in its registers as if it is vested in the Panchayat. In answer to the allegations in O.S. No. 2 of 1994, the Panchayat came with Ext. A7, written statement. In Ext. A7 the Panchayat has stated that the road (referred as plaint B schedule in O.S. No.2 of 1994) is not vested with the Panchayat and that has no intention to include the same in the Panchayat records (unless property holders surrender the land to the Panchayat). It is further contended that there was an application filed by the villagers before the Panchayat to include the road in the Road Register of the Panchayat but since no consent letters were given by the property holders no further was taken by the Panchayat to include it in the Panchayat Register. The Panchayat further contended that the cause of action pleaded is imaginary since the disputed road is not vested in the Panchayat.

Pursuant to that, respondent filed Ext. A8, application in O.S. No. 2 of 1994 to withdraw the suit with liberty to file fresh suit. That application was allowed as seen from Ext. A3 and O.S. No. 2 of 1994 was allowed to be withdrawn with liberty to the respondent file fresh suit in case circumstances warranted.

I shall presently refer to Exts. X1 to X2(a). Those documents are proved by D.W2 an employee of the Local Authority. He stated that since the Secretary of the local authority is undergoing treatment in the hospital he is producing the relevant records. He stated from Ext. X2 and Ext. X2(a), Road Register and relevant entries that the road mentioned therein by name Karakkod Kavala - Jayagiri has length of 800 metres and width of 4 metres. He also stated that it is after obtaining consent of parties and permission of the Village Officer concerned that matter was discussed, recorded in the minutes (of the Panchayat Committee) and entered in the (road) Register. In cross-examination he stated that he can produce the relevant records of the Panchayat showing proceedings taken as per the Land Relinquishment Act. Only after referring to the proceedings he can say thorough which all properties the disputed road passes.

It is not very much in dispute that the road goes towards further south and north of the suit property. But going by Ext. A7, the said road is not vested in the local authority. Specific reason stated by the local authority in Ext. A7 is that road was not included in the Road Register as vested in the Panchayat since property holders have not given their consent. There is no case or evidence that respondent has given his consent for inclusion of that part of the road going through his property so that it could vest in the Panchayat. There is also no evidence before the court to show that that there was any surrender by the respondent or acquisition proceeding initiated on behalf of the Panchayat. Therefore based on Exts. X1 to X2(a) in the light of Ext. A7 the contention that the disputed road passing through the suit property is vested with the Panchayat cannot be accepted.

So far as Ext. C4 is concerned it is not disputed that it is a provisional plan since the survey has not become final. No doubt in Ext. C4 it is shown that a portion of the road falls in Sy. No. 498 in which appellant owns property as per Ext. B1. But so far as the survey has not become final no reliance can be placed on the survey boundary line shown in Ext. C4.

I must also notice that suit is merely for prohibitory injunction paying court fee under Sec. 27(c) of the Kerala Courts Fees and Suits Valuation Act. Therefore it is not necessary to enter any finding regarding title of parties.

In Ext. A1, purchase certificate in favour of respondent western portion of the property is mentioned as ''thodu''. In Ext. B1, assignment deed in favour of appellant, his eastern boundary is mentioned as ''thodu''. In other words western boundary of the suit property is thodu as given Ext. A1. Admittedly the disputed road passes along the eastern side of the said thodu.

I stated that Ext. C4, survey has not become final and no reliance can be placed on Ext. C4. Assuming that a portion of the disputed road falls in Sy. No. 498, still question whether boundary should prevail or survey should prevail depends on the facts and circumstances. In the decision cited supra it is stated that there is no invariable rule that in case of discrepancy between survey number, area, measurement, boundaries, etc., one should prevail over the other. That is because it is a mater of construction of the document. In Parameswaran Pillai v. Gowrikutty Amma (1984 KLT SN 111) it is held that when properties are described as lying within specific boundaries, description by boundaries must be considered. In this case I stated from Ext. A1 that western boundary of property covered by that purchase certificate is the ''thodu''. Therefore I am inclined to uphold the finding of first appellate court that respondent is in possession of the suit property extending upto the thodu on the western side. I make it clear that I have not entered any finding regarding title claimed by parties and which question is left open for decision in appropriate proceedings.

Learned counsel for respondent has submitted that respondent has no objection in appellant or any other person making use of the road on the east of the thodu referred above. The said submission is recorded. It is made clear that the above submission made by the learned counsel is on a concession and not in recognition of the right if any of the appellant or others making use of the road which if any, is to be established in other appropriate proceedings. Substantial questions of law framed are answered as above. Regular Second Appeal is dismissed with the above observations and clarification. No costs. All pending Interlocutory Applications will stand dismissed.