Janamma vs Somanathan - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 20TH DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 RSA NO. 723 OF 2013 AGAINST THE ORDER/JUDGMENT IN AS 28/2010 OF DISTRICT COURT, ALAPPUZHA OS 142/2004 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA APPELLANTS/APPELLANTS/DEFENDANTS: 1 JANAMMA AGED 60 YEARS W/O. CHELLAPPAN, RESIDING AT THULAMITTAM HOUSE, ATTUVATHALA MURI, CHAMPAKKULAM VILLAGE. 2 RAJESHKUMAR (SUMESH) AGED 39 YEARS S/O. CHELLAPPAN, RESIDING AT THULAMITTAM HOUSE, ATTUVATHALA MURI, CHAMPAKKULAM VILLAGE. 3 SURESHKUMAR AGED 40 YEARS S/O. CHELLAPPAN, RESIDING AT THULAMITTAM HOUSE, ATTUVATHALA MURI, CHAMPAKKULAM VILLAGE. BY ADV SRI.K.N.VENUGOPALA PANICKER RESPONDENT/RESPONDENT/PLAINTIFF: SOMANATHAN AGED 64 YEARS S/O. KESAVAN, RESIDING AT THULAMITTAM HOUSE, ATTUVATHALA MURI, CHAMPAKKULAM VILLAGE. BY ADVS. SMT.BHAVANA VELAYUDHAN SRI.S.SANAL KUMAR SMT.T.J.SEEMA OTHER PRESENT: S. SANAL KUMAR - RESPONDENT THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

This appeal has been filed against the judgment and decree in A.S.No.28/2010 on the files of District Court, Alappuzha, which arose out of the judgment and decree in O.S.No.142/2004 on the files of Additional Munsiff's Court, Alappuzha.

2. Appellants herein are the defendants. Respondent

herein is the plaintiff. (The parties would hereinafter be referred as per their status before the trial court). The suit is one for fixation of boundary, declaration of title, recovery of possession and permanent prohibitory injunction.

3. The plaint schedule item Nos.1 and 3 properties originally belonged to late Kesavan - the father of the plaintiff and deceased Balakrishnan and Chellappan. Chellappan is the

predecessor of the defendants. Father - Kesavan executed a settlement deed in the year 1978 and gifted plaint item Nos.1 & 3 along with other properties among other sons. Plaint item No.1 was allotted to the plaintiff and plaint item No.3 was given to Chellappan, who is the husband of the first defendant and father of defendants 2 and 3.

4. There was a fencing separating plaint item Nos.1 & 3

properties. It is alleged that on 03.02.2004 defendants demolished that boundary fence and trespassed into plaint item No.1 property and the trespassed area is shown as item No.2 property. Hence, the suit has been filed to fix the southern boundary of plaint item No.1 property and to recover item No.2 property from the defendants and also for a permanent injunction.

5. Defendants filed written statement contending that the

description of the plaint schedule item No.1 is wrong and the attempt of the plaintiff is to trespass into the plaint item No.3 property belonging to the defendants. The defendants are in possession of plaint B schedule in the Settlement Deed. The defendants are in possession of plaint schedule item No.2 property, the plaintiff's right, if any, over it has been lost by adverse possession. There existed no fencing in between the plaint

item Nos.1 & 3 properties and the properties are separated by boundary stones. There was no demolition of fence as alleged. The declaratory relief sought for is barred by limitation.

6. PW1 examined and Exts.A1 and A2 marked from the side of the plaintiff. Second defendant was examined as DW1 and Exts.B1 and B2 were marked from the defence side. Exts.C1, C1(a) and C1(b) were also marked.

7. On evaluating the facts, circumstances and evidence

the trial court decreed the suit fixing the DC line as shown in Ext.C1(a) plan as the southern boundary of plaint item No.1 property. But declaration of title and possession over item No.1 property is dismissed and permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule item No.1 property or committing waste thereon and from causing obstruction to the plaintiff in taking usufructus from plaint item No.1 property and interfering with the peaceful possession and enjoyment of plaintiff over plaint item No.1 property etc has been granted. Aggrieved by the same, the defendants filed appeal and the first appellate court on re- appreciation of facts, circumstances and evidence dismissed the appeal confirming the judgment and decree passed by the trial court.

8. Having lost before the two forums, the appellants/

defendants approach this Court in Second Appeal. The appeal has been admitted on the substantial questions of law formulated in the appeal memorandum, which reads thus:

1. When the beneficiaries in a Settlement Deed is

conferred right over equal shares of property by specific recital in the Deed itself, can one of them be denied that right by subjective future interpretations?

2. Should the courts consider the intention of the author of the document otherwise than by giving the literal meaning of the wordings used in the document?

3. When the author of the document himself did not contemplate of any excess land, can the court take a decision denying the equitable distribution of excess land later found out as per the resurvey effected?

4. Can the court take a decision disregarding the re- survey measurements even when there is a challenge against it and when the statutory period expired long ago after the finalization of the resurvey?

9. Lower court records were called for and both sides were heard.

10. According to the learned counsel for the defendants,

the plaintiff was not examined and there is no cause of action for filing the suit and a previous surveyor alone was examined and his report was set aside. He would also contend that the total extent of property settled in favour of plaintiff as well as the

predecessor of the defendants was only 32.5 cents each and as per the resurvey the total extent of property as per the commissioner's report and plan is 71.355 cents. But the trial court fixed the DC line as the southern boundary of plaint item No.1 as per which the extent of plaint schedule item No.3 property is reduced to 37 cents, whereas, that of the plaintiff's property item No.1 is having 45 cents 200 sq.mtrs. He would contend that as per resurvey there was an excess extent of land and the settler never intend to give such excess extent of land to the plaintiff and when such a difference in total extent of land has come out on measurement, the courts below ought to have followed principle of equity by fixing the boundary giving equal shares to plaintiff and the defendants. So, according to him, instead of DC line EF line ought to have been fixed as the southern boundary of the plaintiff's property.

11. Learned counsel for the defendants on the other hand

would contend that the stipulations in Ext.A1 deed by which the property was devolved upon the plaintiff and the predecessor of the defendants is the most crucial thing and its interpretation is the material aspect for resolving the dispute between the parties. He would contend that there is a specific stipulation in

Ext.A1 in contingency where there is any mistake or difference in the extent of B and C schedule properties i.e. the plaint item Nos.1 & 3 properties respectively, the property has to be measured as per the side measurements shown in B schedule and separating the B schedule as per the side measurement the balance property on the north has to be demarcated as C schedule i.e. plaint item No.1 property. That has been done by the Commissioner and Surveyor while preparing the plan and there is no other possible way for fixing the southern boundary of plaint item No.1 property.

12. In Ext.A1 the side measurements of B schedule

property i.e. item No.3 has been given as the eastern side 201; southern side as 180; western side 208; the northern side 200, links. That is the exact measurement shown in Ext.C1(a) as B schedule and if that property is demarcated its northern boundary would be 'BC' line. So, as per the description in Ext.A1 after demarcating the 'B' schedule as per the side measurements, the balance northern property is to be demarcated as 'C' schedule. On going through the recitals in Ext.A1 that is the only possible way of interpreting and demarcating the southern boundary of plaint C schedule

property. So the fact that there was a slight increase in extent of 'C' schedule property compared to that of 'B' schedule is not a reason to deviate from the recitals in Ext.A1. Though the learned counsel would contend that as per resurvey there is greater extent of land and it was not the intention of the settler to give such increased extent to 'C' schedule and the partition on the principle of equity ought to have been followed etc is without any legal footing since the recitals in Ext.A1 is very clear and there is also a specific description of resolution of dispute if there is difference in extent or discrepancy in measurement. Hence, the only possible method is to demarcate the property as per the recitals in Ext.A1. So also there was no request from the side of the defendants to measure and demarcate the property as per resurvey and fix the boundary as per resurvey. The suit itself has been filed for fixation of southern boundary of plaint schedule item No.1 as per settlement deed No.918/1978 and to fix the southern boundary of plaint item No.1.

13. In the written statement filed by the defendants also

they have specifically contended in paragraph No.6 that the defendants possessed the property as per the settlement deed of 1978 (Ext.A1) with no reduction and hence there is no ground of

dispute. As per Ext.A1 the property settled in favour of the defendants is only 32.5 cents. Now the property demarcated as per Ext.C1(a) is 37 cents. Hence, in view of increase in extent as per resurvey there is increase in extent of defendants' property also from 32.5 to 37 cents. So the fact that plaintiff's property on measurement is found to have extent of 45.200 cents by itself is not a reason to deviate from the recitals in Ext.A1 in demarcating the boundary. So Ext.C1(a) report and plan submitted by the commissioner and surveyor seems to have been rightly accepted by the courts below.

14. Learned counsel for the defendants has also got a

contention that the plaintiff has no cause of action for filing the suit and he was not examined and grant of injunction without proving the cause of action is illegal.

15. In the plaint the cause of action alleged is the demolition of boundary fence on 03.02.2004 and trespass into plaint item No.2 and reducing it into the possession of the defendants.

16. Defendants on the other hand denied of having any such incident and categorically contended that there is no boundary fence demarcating the plaint item Nos.1 and 3 properties.

It has come out in evidence that there was no demarcating boundaries between plaint item Nos.1 & 3 properties. Since the suit is for fixation of boundary the fact that there is no demarcating boundaries in between plaint item Nos.1 & 3 properties itself is a cause of action for filing the suit. So the contention that the plaintiff failed to prove the cause of action for filing the suit also cannot be accepted. Since there is persistent boundary dispute between the parties after fixing the boundary between plaint item Nos.1 & 3 the injunction sought for further trespass and committing waste and causing obstruction to the plaintiff in taking usufructus from the plaint schedule property or interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule item No.1 property is also to be granted in the usual course.

17. Based on the above discussion, I am of the considered view

that the courts below rightly fixed the southern boundary of plaint item No.1 as 'DC' line and granted an injunction in favour of the plaintiff. I do not find any reason whatsoever to interfere with the same. Hence, appeal is found to be devoid of any merit and hence dismissed. Sd/- M.R.ANITHA SHG JUDGE