IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY,THE 29TH DAY OF AUGUST 2014/7TH BHADRA, 1936 RSA.No. 1272 of 2012 () AGAINST THE JUDGMENT IN AS 27/2012 of SUB COURT, PALA DATED 24-05-2012 AGAINST THE JUDGMENT IN OS 98/2006 of MUNSIFF COURT, PALA DATED 12-12-2007 APPELLANT(S)/APPELLANTS/DEFENDANTS 1&2: 1. P.J.MATHEW, S/O/.OUSEPH, PAMPLANIYIL HOUSE, POOVARANI KARA, POOVARANI P.O, PAIKA, KOTTAYAM 686 577 2. BIJU JAMES MATHEW S/O.P.J MATHEW, PAMPLANIYIL HOUSE POOVARANI KARA, POOVARANI P.O PAIKA KOTTAYAM 686 577 BY ADV. SRI.ROY CHACKO RESPONDENT/RESPONDENT/PLAINTIFF: SAJEEV T. PAUL, S/O.PAUL THODUKAYIL HOUSE, POOVARANI P.O MEENACHIL PAIKA KOTTAYAM DISTRICT 686 577 R BY ADV. SRI.SHAJI THOMAS R BY ADV. SRI.N.NAGARESH R BY ADV. SRI.BINU PAUL R BY ADV. SRI.T.V.VINU THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 29-08-2014, ALONG WITH RSA No.1297/2012 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. R.S.A. Nos. 1272 & 1297 of 2012 Dated this the 29th day of August, 2014 JUDGMENT
Two suits namely O.S.No.77 of 2006 and O.S. No.98 of 2006 before the Court of Munsiff, Pala, were jointly tried and disposed of by a common judgment. The trial Court dismissed OS No.77/2006 and decreed OS No.98/2006. OS No.77/2006 is one for fixation of boundary and OS No.98/2006 is one for permanent prohibitory injunction.
2. The defendant in OS No.77/2006 was the plaintiff in OS No.98/2006. Against the judgment and decree in both the suits, the plaintiff in OS No.77/2006 went up in appeal before the lower appellate court. The lower appellate court, after appreciating the entire evidence, concurred with the findings of the trial court and dismissed both the appeals. That brings the plaintiff in OS No.77/2006 before this Court.
3. The essential facts required for disposal of these appeals are as follows:
R.S.A. Nos. 1272 & 1297 of 2012
4. Both the parties traced title to Ext.A1 document, which is a Will executed by the predecessor in interest of the parties. The plaintiff laying claim on the basis of Ext.A1 instituted the suit for fixation of eastern boundary pointing out that there were no boundaries separating his property from the property belonging to the defendant in the suit which is situated on the eastern side of his property. He apprehended that the defendant may tamper with the boundaries and may encroach into his property. Therefore, as a safe measure, he wanted the the boundary to be laid with the aid of court.
5. The defendant resisted the suit. It is pointed out by him that there was a permanent boundary on the eastern side of the plaint schedule property (western side of the defendant's property) and both properties were well demarcated and separated by a common boundary. It was also pointed out by him that the attempt now is to usurp a portion of the defendants property and there was no occasion or need for fixation of boundary as there was already one in existence. He, therefore, prayed for a dismissal of the suit. R.S.A. Nos. 1272 & 1297 of 2012
6. The defendant in his turn apprehending a trespass by the plaintiff, laid a suit for injunction which was resisted by the plaintiff in O.S.No.77/2006 on the very same allegation on the basis of which, he laid the suit for fixation of boundary.
7. The trial court raised necessary issues and the parties went to trial. O.S.No.77/2006 was treated as a leading case. Evidence was adduced in the said case. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts. A1 to A3 from the side of the plaintiffs. The defendants examined DWs 1 and 2 and had Exts. B1 to B3 marked. Exts. C1, C1(a), C2 and C3, C3(a), C4 and C4(a) are the Commissioner's reports and plans filed in the case. On an appreciation of the evidence the consequences already made mention of followed.
8. Notice was issued on the following substantial questions of law:
"i) Whether or not the courts below went wrong in law in misconstruing the evidence of PW1 as well as PW2., wherein, it is established that there was no clear demarcating boundary on the eastern side of the plaint schedule property and the western side of the property owned by the respondent.
ii) Whether the courts below were justified in R.S.A. Nos. 1272 & 1297 of 2012 discarding the evidentiary value of Ext.A1 Will on which Letters of Administration have been granted under the provisions of the Indian Succession Act which clearly and conclusively confer absolute right of the appellant over the plaint schedule property.
iii) Whether or not the courts below went wrong in law in rejecting the Advocate Commissioner's report evidenced by Exts.C1 and C1(a) to C3 and C3(a) which are an evidence in the suit in terms of Order 26 R.10(2) of the Code of Civil Procedure ?
iv) Whether or not the courts below were justified in dismissing the suit of the appellant in view of the evidence of DW2 wherein he in unambiguous terms admitted the veracity of A1 Will and the absolute right of the appellant by virtue of A1 over the plaint schedule property."
9. Sri. Roy Chacko, the learned counsel appearing for the appellants in both these cases contended that there has not been a proper appreciation of the evidence in the case and also that both the courts below have failed to appreciate the case put forward by the plaintiff in the proper perspective. The Commissioner's report has been misread and the relevant portion of the Commissioner's report has been omitted to be noticed. In other words, the contention is that the courts below have been guided by irrelevant facts and they have omitted to notice the relevant facts. Relying on Exts. A1 and A2, it was contended that excluding the building E and F therein, there was vacant land of 4 feet width at the rear R.S.A. Nos. 1272 & 1297 of 2012 portion of the building to which he is entitled to and both the courts below have omitted to take note of the said fact. It was also pointed out that the courts below have only reproduced the portion of Ext.C1 report omitting the other portion which clearly reveal that there was no existing boundary to separate the suit property. Going by the findings of the court below, according to the learned counsel, he stands to loose the vacant space which was available by him both under Exts. A1 and A2 which are the documents of title. The courts below were not justified in their conclusion that the said space has been utilized for construction later on. It was also pointed out that the courts below have omitted to note that the survey number shown by defendant is wrong. In short the contention is that both the courts below have acted mechanically without applying the minds and have reached a conclusion that there is an existing boundary and therefore there was no need to lay a fresh boundary.
10. The learned counsel appearing for the respondents on the other hand pointed out that both the courts below have meticulously considered the materials on record and have R.S.A. Nos. 1272 & 1297 of 2012 come to the identical conclusion that there does exist a well demarcated boundary separating the property of the plaintiff from that of the defendants in O.S.No.77/2006. According to the learned counsel, the plaintiff is trying to take advantage of the recital of vacant space of 4 ft. made mention of in Exts.A1 and A2 ignoring the relevant aspect that subsequent to Ext.A1, there has been a reconstruction in the property during which the vacant space was utilized for extending the existing construction. What now the plaintiff wants is a 4 ft length land from the reconstructed structure which is essentially mean that it will encompass a portion of the property to which the defendant is exclusively entitled to. The learned counsel also pointed out that the Commissioner's reports are clear on one aspect that the plaintiff who, as per Ext.A2 which for the first time mentioned about the extent of the property obtained by the plaintiff, has clearly mentioned that as per the sketch now prepared by the Commissioner show that he holds 84 sq mt. of land shown as the rose shaded portion shown in Ext.C3
(a) plan. The learned counsel also pointed out that on the other hand the defendant as per the document of title is R.S.A. Nos. 1272 & 1297 of 2012 entitled to 84 sq.mt. even including the pink coloured portion has only 71 sq. mts., and that would show that there is no basis for the claim laid by the plaintiff. It is significant to notice according to the learned counsel that, no objection has been filed to Exts.C3 and C4 report and plan which clearly have identified the respective properties obtained by the parties as per their respective documents and there is nothing to show that there is any need for laying boundary as there is already one as noticed by the courts below separating the two properties.
11. The learned counsel then went on to point out that the question as to whether there is well laid boundary or not, is essentially involves appreciation of the evidence in the case and conclusion are findings on facts. There is nothing to show that those findings are either perverse or contrary to the evidence on records. If that be so, interference while exercising under Section 100 of CPC is quite unwarranted.
12. After having heard the learned counsel on both sides and after having perused the records, there seems to be considerable force in the submissions made by the learned R.S.A. Nos. 1272 & 1297 of 2012 counsel for the respondents. Though the arguments of the learned counsel for the appellants may look tall and formidable at the first blush, a closer scrutiny of the evidence in the case would clearly show the hollowness of the contentions.
13. The trump card of the appellant is Exts.A1 and A2 document which make mention of 4 ft.vacant space on the rear portion of the building which he obtained under those documents. To be more precise, Ext.A1 does not make mention of the extent of the property but only makes mention of two shop rooms and 4ft wide vacant space behind the shop room. Ext.A2 repeats the same recitals. But in evidence, it has come out that while Ext.A2 was executed there had already been a reconstruction of the building. It is not in dispute that the building as it originally stood, had only two shop rooms but at the time of Ext.A2, there was three rooms. It must be born in mind that the 4 ft vacant space was from the ground level of the original building. Both the courts below have found that with the extension of the building by taking one more room the structure has been extended and R.S.A. Nos. 1272 & 1297 of 2012 thereafter the plaintiff cannot contend and he should still get 4ft from the newly constructed building which consists of three shop rooms.
14. The fact that there has been a reconstruction of the building which was originally shown in Ext.A1 by extending it further to the eastern side cannot be disputed by the plaintiff. If that be so, it is for him to explain the extent of space utilized for the construction. Necessarily it has to be from the vacant space mentioned in Ext.A1.
15. It is also significant to notice that it was after the Commissioner's report, finding that he may be in difficulty, that the plaintiff sought for an amendment of the plaint incorporating the schedule to the effect that he has 4 ft land from the newly constructed building.
16. In fact, a reading of the plaint especially Paragraph 4, would indicate that even before there was a rough boundary separating the two properties.
17. It is here one has to notice that the Commissioner's reports clearly identify the two properties coverd by Exts.A1, A2, B2 and B3. Exts. A1 and A2 relate to the plaintiff in O.S. R.S.A. Nos. 1272 & 1297 of 2012 77/2006 while Exts. B2 and B3 relate to the defendant in the said case.
18. It may be noticed here that Ext.A1 does not make measurements of either of the properties. It is the subsequent document in the case of the plaintiff Ext.A2 which mentions about the extent as 84 sq.mt and that of the defendant is 81 sq.mt. The Commissioners in their report namely, Exts. C3 and C4 followed by C3A and C4a report demarcated the two properties obtained by the respective parties and have come to the conclusion that the plaintiff even without the rose coloured portion shown in Ext.C3a holds 84 sq.mt. Of property. While the defendant even including that portion has only 71 sq.mt., though he is entitled to 81 sq.mts.
19. What is now highlighted is that a portion of C1 report which says that no boundary could be seen on the eastern portion of the plaint schedule property. That has to be understood in the context in which the said statement has been made. When one looks at C3a plan the picture becomes very clear. What the Commissioner intended to was in ExtC1 must be that if the rose coloured portion is included as R.S.A. Nos. 1272 & 1297 of 2012 plaintiffs property then there is no boundary separating the two properties. If on the other hand, that portion is included in the defendants property there is a well demarcated boundary separating the two properties. As already noticed, the properties have been properly identified and the respective portions of each of the parties have been clearly demarcated in the report and the plan.
20. It is significant to notice that no objections have been filed to Ext.C4, C4(a), C3, C3(a) plan and report.
21. In the absence of any objection to those reports and plan, the courts below were justified in accepting those reports and coming to the conclusion that there is well laid boundary separating the two properties. As rightly pointed out by the learned counsel for the respondent, the attempt of the plaintiff in OS No.77/2006 seems to be usurp a portion of the property which belongs to the defendant.
22. Even the Commission report shows that there is a well separating boundary between the two properties if the rose coloured portion is taken as the property which belonged to the defendant. As has already been found by this Court also R.S.A. Nos. 1272 & 1297 of 2012 after going through the evidence and findings, i.e., that portion does form a part of the property obtained by the defendant as per Ext.A2.
23. Both the courts below have come to the conclusion that the 4ft. vacant space made mention of in Exts. A1 and A2, rear portion has been utilised for extending the building which was already there in which the property was obtained by the plaintiff. That it is so, is clear from the evidence also, even though the plaintiff is reluctant to admit the same. He would even say that at the time of execution of Ext.A2, the building has not been extended, whereas, his said statement is belied and he stands betrayed by the recital in Ext.A2 itself.
24. It was the above facts and circumstances which persuaded to the courts below to come to the conclusion that the boundary shown by the Commissioner separates the suit properties and there is no need to lay a fresh boundary between the properties. Both the courts below have appreciated the evidence in proper perspective and have come to the right conclusion that there is no need to fix a fresh boundary as already exists a properly laid boundary between R.S.A. Nos. 1272 & 1297 of 2012 the two properties. As rightly pointed out by the learned counsel for the respondent, the finding that there is a well laid boundary and also the finding regarding the extent of the property and the nature of property and the location of the property by the Commissioner are essentially based on appreciation of evidence in the case. There is nothing to show that there is any perversity or impropriety in the appreciation of the evidence in the case.
If that be so, exercising the jurisdiction under Sec.100 of Code of Civil Procedure, there is no justification or no interference is warranted with the findings of the Courts below. Hence, these appeals are without merits and they are accordingly dismissed. There will be no order as to costs.
P. BHAVADASAN, JUDGE das True copy PA to Judge