Naseema vs Najumudeen

A. Badharudeen, J

This second appeal has been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short), challenging the decree and judgment dated 27.02.2023 in A.S.No.33/2016 on the files of the Sub Court, Attingal, arose out of the decree and judgment in O.S.No.373/2006 on the files of the Munsiff's Court, Attingal.

This appeal is at the instance of the defendants in the above Suit and the respondent is the sole plaintiff in the above suit.

Heard the learned counsel for the appellants on admission. Perused the available materials.

I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendants' for convenience.

The plaintiff filed suit for fixation of boundary and prohibitory injunction. The case put up by the plaintiff before the trial court was that plaint A to E schedule properties were obtained by the plaintiff on the strength of sale deed Nos.1478/88 (Ext.A1), 667/87 (Ext.A2) and 1154/1993 (Ext.A3) and the plaintiff had been possessing and enjoying the same. The case of the plaintiff further was that plaint F schedule property is a pathway to plaint A to E schedule properties and the same is having a length of 50 m and a width of 2.60 m. Plaint G schedule property is the property belonged to defendants 1 and 3, as per Ext.B2 sale deed. Accordingly, the plaintiff pressed for grant of reliefs to fix the boundaries of plaint A to G schedule properties and also consequential injunction.

The defendants entered appearance and filed written statement. According to the defendants, plaint F schedule way and 40 cents of property belonged to one Jamaludheen and the plaintiff never obtained title or possession over plaint A to E schedule properties. Filing of earlier Suit as O.S.No.103/2006 and its dismissal were highlighted while opposing the prayers in the suit.

The trial court ventured the matter. PW1 to PW3 examined and Exts.A1 to A9 were marked on the side of the plaintiff. DW1 examined and Exts. B1 to B11 were marked on the side of the defendants. Exts.C1, C1(a) and C1(b) were marked as Court Exhibits.

On appreciation of evidence, the trial court acted upon Ext.C1(b) plan to decree the suit.

The defendants challenged the said verdict before the Sub Court, Attingal and the learned Sub Judge re-appreciated the evidence and modified the decree, acting on Ext.C1(a) plan, as under:

In the result, this appeal is allowed partly modifying the decree in O.S.no.373/2006 of the Munsiff Court, Attingal as follows:

(1) The line shown as 'FJNOE' in Ext.C1(a) plan is fixed as demarcating boundary of plaint A to F schedule properties and G schedule property.

(2) The line shown as 'hijzlm' in Ext.C1(a) plan is fixed as demarcating boundary of plaint A to E schedule properties and F schedule property.

(3) The plaintiff is permitted to put up a physical boundary at the above said lines without closing plaint F schedule property.

(4) The defendants are restrained from committing trespass into plaint A to E schedule properties and from committing waste therein.

(5) Ext.C1(a) plan shall form part of the decree.

(6) The parties are directed to suffer their respective costs.

As per order dated 23.08.2023, my learned predecessor, admitted this appeal with an order that, admit on the questions of law 1 to 4 in the appeal. Since the said order does not depict formulation of substantial questions of law by the court, the substantial questions of law emerges in this appeal are formulated as under:

1) Whether the courts below went wrong in negativing the contention raised by the defendant/appellant highlighting bar of the Suit under Order II Rule 2 of CPC?

2) Whether the first appellate court went wrong in granting decree on the basis of Ext.C1(a) plan?

The learned counsel for the defendants submitted that this suit is fit by Order II Rule 2 of the CPC since the plaintiff filed earlier suit, as O.S.No.103/2006, for the relief of injunction. In fact, the said contention was negatived by the courts below, specifically on the ground that the relief sought for in the earlier suit is not one prayed for herein and the present suit was filed as permitted by the court as per order in I.A.No. 698/2006 to withdraw O.S.No.103/2006 and to file fresh suit. Since the said finding found to be justifiable, the bar under Order II Rule of CPC is held as meritless. Answering the first substantial question of law, it is held that the courts below rightly negatived the bar under Order II Rule 2 of CPC on the finding that the present suit was filed after withdrawing the earlier suit with liberty to file the present suit.

In this matter, even though the trial court given emphasis to Ext.C1(b) plan, which mainly reposes the re-survey plan, the appellate court modified the verdict of the trial court, relying on Ext.C1(a) plan, prepared on the basis of the title deed. It has been observed by the appellate court that the defendants raised objection to the commission report and plan, mainly on the ground that commissioner and surveyor did not locate plaint A to E schedule properties in accordance with the old survey plan. Accordingly, the appellate court found that even though Ext.C1(b) plan is one prepared based on the resurvey done by the revenue officials, PW2, the surveyor, given evidence that in Ext.C1(a) plan, the property of the defendants covered by Ext.B2 was specifically located as a property having an extent of 40 cents. It is discernible from the  available  materials,  including  Ext.C1  report  and Ext.C1(a) plan that the plaint G schedule property belonged to the defendants lies within the compound wall and therefore, the defendants are not at all aggrieved in the matter of their title and possession in respect of the property having an extent of 40 cents located by the Commissioner within the said boundary walls. Accordingly, the appellate court relied on Ext.C1(a) plan and granted decree as herein above extracted. 13.  On perusal of Ext.C1(a) plan with Ext.C1 series report, it appears that the finding of the appellate court while reversing the decree and judgment of the trial court, acting on Ext.C1(a) plan, is justifiable. Therefore, the decree granted by the appellate court is found to be in order. Thus, the second substantial questions of law answered holding that the first appellate court rightly acted upon Ext.C1(a) plan and granted decree and therefore, the said finding does not require any interference at the hands of this Court.

Accordingly, this appeal fails and the same is dismissed accordingly.

All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed.

Registry shall inform this matter to the trial court as well as the appellate court forthwith.