Rajamma Rajan vs Benny Varghese

M.R.Anitha, J

This R.S.A has been directed against the judgment and decree in A.S.No.52/2008 on the file of Subordinate Judge's Court, Muvattupuzha which arise out of the judgment and decree in O.S.No.48/2006 on the file of Munsiff's Court, Muvattupuzha.

(Parties would hereafter be referred as per their status before the trial court). The suit was one for fixation of boundary and prohibitory injunction. First plaintiff obtained undivided half right over the plaint schedule property by virtue of settlement deed No.6597/2006 executed by her husband. The property is jointly possessed by the plaintiffs which is lying in 'L' shape. Defendant is the owner of property situated on the south western side of plaint schedule property. After purchase of property by the defendant, boundary was reconstructed by the defendants. When the defendant purchased property, there was an old boundary on the eastern and northern side of the property purchased by him. For the purpose of selling his property defendant started to renovate the old building in his property for which he demanded some portion of the property on the south western side of the plaint schedule property and that was refused by the plaintiffs. Thereafter, defendants trespassed into the plaint schedule property at a length of 2 ft. on the eastern side of the kayyala and on the northern side of the defendants' property and demolished the western boundary kayyala of plaint schedule property and attempted to join with the defendants' property. So, it is necessary to fix the western boundary of the plaint schedule property and the defendants' property. Permanent prohibitory injunction is also sought for restraining the defendants from trespass and demolition of boundary and interfering with the plaintiffs possession over the plaint schedule property.

First defendant filed written statement contending that the plaint schedule property is not identifiable. Plaintiffs have not obtained the entire plaint schedule property by virtue of the deed No.6597/2006. The property description of the deed is with respect to half right of over 10 cents of property. That half right is not separately shown. The location of the above property is not described. No executable decree can be passed with the description of the plaint. Plaintiff has not obtained possession over the plaint schedule property. It is not lying in 'L' shape. Demarcating   the   defendants'   property   and  the  above described 10 cents of property, there is kattukallu kayyala on the southern side of 10 cents. There is no boundary on the eastern side of the plaint schedule property. Plaint schedule property is not demarcated on all sides. There is no difference with respect to their boundaries from the date of purchase. He had entered into an agreement for sale of property due to financial difficulties. He has neither sought for plaintiffs property nor attempted to demolish the boundary kayyala of the plaint schedule property. Defendant has no objection for conducting survey measurements. There is no connection between the measurement of plaintiffs property and sale of defendant's property. Suit has been filed to obstruct the sale of defendant's property. Defendant obtained 5 cents of property on the southern and western side of plaintiffs' property by virtue of sale deed No.3591/2005. Soon after purchase, he constructed a building thereon. After the filing of the suit, plaintiffs and agent trespassed into the defendant's property and demolished the hollow bricks construction demarcating the defendant's courtyard. So, the attempt of the plaintiff, is to grab his property. If it is shown that the plaintiffs are having any right over any portion of his property, it is lost by adverse possession.

Second defendant remained exparte. PW1 examined and Exts.A1 and A2 marked from the side of the plaintiff. Exts.C1 to C3(a) were also marked. There was no defence evidence.

Learned Munsiff, on evaluating the facts and circumstances and evidence, dismissed the suit finding that the plaintiff had not pleaded title over the entire 10 cents of property and the evidence is with respect to possession over property below 9 cents. Hence, it was found that the plaintiff is not entitled for fixation of boundary, or injunction, as sought for. Against which appeal was filed before the Subordinate Judge's Court, Muvattupuzha and the learned Sub Judge confirmed the judgment and decree passed by the trial court. Aggrieved by the same, appellants approached this Court in second appeal.

At the time of admission, this Court formulated the substantial question of law as in the appeal memorandum which reads as follows:

i) “Whether the trial court and Lower Appellate Court was justified in dismissing I.A.No.3988/2007 for remitting back the Commission report and survey sketch, along with the judgment and decree of the trial court in the suit?

ii) Whether the courts below were justified in relying on Exts.C2 and C2(a) Commission report and survey sketch in the light of the order dated 14.08.2007 in I.A.No.2051/2007 remitting back the same?

iii) Whether  the  courts  below  were  justified  in relying on the 2nd Commission report of the Adv. Commissioner without marking it?

iv) Whether the courts below was justified in relying on the report of the Adv. Commissioner that the remaining extent of the plaint schedule property can only be located if the entire properties in the survey number are measured?

v) Whether the courts below erred in not giving opportunity to measure the plaint schedule property to fix boundary?

vi) Whether the courts below erred in law in misreading evidence and relying on evidence that were not adduced in the case?

vii) Whether the findings of the courts below are unreasonable, perverse and unsupported by evidence?”

Notice was issued to the respondents and Sr. Adv.Ramesh  Chander appeared on behalf of the respondents 1 and 2. Both sides were heard.

According to the learned counsel for the appellants/plaintiffs, dismissal of the suit by the trial court as well as the first appellate court is without properly appreciating the contentions advanced from the side of the plaintiffs. According to him, it is admitted by the defendants in the written statement that there is no boundary on his eastern side and on the western side of the plaintiffs property. Exts.C1 and C1(a) are the Commission report filed as per the order in I.A.No.4383/2006. Subsequently, as per order in I.A.No.4600/2006 Exts.C2 and C2(a) survey commission report as well as the sketch are produced. Subsequent to the filing of Exts.C2 and C2(a) plaintiffs filed I.A.No.2051/2007 to remit back the Commission report and that was allowed and commission report was remitted as per the order dated 14.08.2002. But the Commissioner without conducting any measurement filed a report stating that in order to demarcate the boundary, the entire property in that survey number has to be measured and identified. Again plaintiff filed I.A.No.3988/2007 to remit back both the Commission report, but without passing any orders on that I.A on dismissing the suit, I.A.No.3988/2077 was also dismissed. So, according to the learned counsel, it is based on a commission report which was seriously objected and allowed to be remitted back by the court, the judgment and decree has been passed by both courts. That is illegal and unsustainable. He would also contend that another reason for dismissing the suit by the trial court is that plaint schedule property is described as 10 cents belonging to Rajan, husband of the first plaintiff and the first plaintiff obtained undivided half right over plaint schedule property by virtue of Ext.A1 deed. Hence, it was found that as per the plaint averments, the plaint schedule property is 10 cents and first plaintiff is claiming undivided half right over the plaint schedule property and plaintiff has not set up any title with respect to the entire plaint schedule property. So also, as per Ext.C2, the property possessed by the plaintiff is only 8.860 cents and as per the report of the Commissioner, the remaining total 10 cents alleged in the plaint can be located only if the entire properties in the same number is measured on the basis of respective deeds. But, no deed has been produced and plaintiff has not taken any steps to locate the remaining extent. As has been rightly contended by the learned counsel, plaintiff produced Ext.A1 by which second plaintiff obtained 10 cents of property on 08.06.2005 and out of which half right over the undivided share was sold in favour of the first plaintiff by the second plaintiff as per Ext.A2 document. So, the finding of the learned Munsiff that the title deed with respect to the entire 10 cents of property has not been produced, is patently wrong. So also, plaint schedule property has been subsequently amended by striking off the wordings with respect to half right of first plaintiff as per order in I.A.No.571/2007. So, the plaint schedule property is 10 cents and not the half of it as found by the courts below.

Written statement filed by the defendants also would go to show that the defendants admit that there is no demarcating boundary on the eastern side of his property as well as on western boundary of the plaint schedule property. At the time of argument, learned counsel for the plaintiff also would submit that there is boundary demarcating the property of the plaintiff as well as the defendants on his southern boundary. So, the dispute is with regard to the western boundary of the plaint schedule property which is the eastern boundary of the defendants' property. Both sides admit about the absence of boundary in between their property and the suit itself is filed for fixation of boundary. Exts.C2 and C2(a) are the survey commission report and plan submitted at the instance of the plaintiffs. Plaintiffs filed objection and prayed for remitting the commission report and that was allowed as per order in I.A.No.2051/2007. But a report was filed by the Commissioner to the effect that the entire property in the same survey has to be measured to demarcate the plaint schedule property and the defendants' property. Again I.A.No.3988/2007 was filed by the appellants/plaintiffs to remit back the commission report. But, that commission application was dismissed on 03.04.2008 on the date of judgment. So, when there is a strong dispute between the parties with their boundary and survey commission was taken and application filed to remit the report was allowed by the court, without getting any further report and plan in pursuance of the order remitting the commission report, the court cannot rely on the objected survey plan and report. So, on evaluating the entire facts and circumstances, it seems absolutely necessary to remit Ext.C2 and C2(a) Commission report and plan and fix the western boundary of the plaint schedule property as sought for by the plaintiff. First appellate court also confirmed the judgment and decree passed by the Munsiff relying on Exts.C2 and C2(a) without proper appreciation of facts and issues involved.

For the reasons stated above, I find it just and proper to set aside the judgment and decree passed by the lower courts and remand the case to the Munsiff's Court, Muvattupuzha which shall reconsider I.A.No.3988/2007 filed by the plaintiffs to remit the Commissioner's report and plan. It is open for both sides to adduce further evidence, if necessary. Being a case of 2016, the learned Munsiff shall dispose of the case, as expeditiously as possible.

In the result, the appeal allowed. In the facts and circumstances, parties shall bear their respective cost.