IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 SA.No. 150 of 2000(A) ----------------------------------- AS.74/1990 of SUB COURT,ATTINGAL OS.109/1987 of MUNSIFF COURT,VARKALA .................... APPELLANT(S): APPELLANT/DEFENDANT --------------------- *MADHAVAN PRABHAKARAN, AGED 63 YEARS, S/O. MADHAVAN, VELIKAKOM VEEDU, VAKKOM DESOM, VAKKOM VILLAGE(DIED) ADDL. R2 TO R7 IMPLEADED 2. INDIRA, AGED 61 YEARS, W/O. LATE PRABHAKARAN, VELIKKAKOM, VAKKOM P.O., CHIRAYANKARA TALUK. 3. GIRIJA, AGED 43 YEARS, D/O. PRABHAKARAN DO. DO. 4. JALAJA, AGED 41 YEARS, D/O. DO. DO. 5. JAYAKUMAR, AGED 38 YEARS, S/O. DO. DO. DO. 6. REEJA. AGED 34 YEARS, D/O. DO. DO. R/AT DO. DO. 7. RAJEEV, AGED 36 YEARS, S/O. DO. DO. DO. *ADDL. APPELLANTS 2 TO 7 ARE IMPLEADED AS THE LR'S DECEASED SOLE APPELLANT APPELLANT AS PER ORDER DT. 15.2.01 IN CMP. 376/2001. BY ADV. SRI.K.P.SREEKUMAR SRI.V.K.GANGADHARAN S.A. NO.150/2000 RESPONDENT(S): RESPONDENT/PLAINTIFFS ------------------------ 1. PADMANABHAN KAUSALYA, AGED ABOUT 67 YEARS, VILAYILVEEDU, VAKKOM DESOM NOW RESIDING AT PUTHEN VILA VEEDU KEEZHATTINGAL. 2. GOPINATHAN MEENAMBIKA, AGED ABOUT 48 YEARS, VILAYIL VEEDU, VAKKOM DESOM KADAKKAVOOR VILLAGE, NOW RESIDING AT POIKAYIL VEEDU, VEETIYARA, KEEZHATTINGAL. R1, R2 BY ADV. SRI.G.S.REGHUNATH SRI.BASANT BALAJI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON 04/062010 DELIVERED THE FOLLOWING: ORDER ON CMP. NO.385/2000 IN SA. NO.150/2000 DISMISSED 04/06/2010 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 150 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of June, 2010. JUDGMENT The defendant, who suffered a decree at the hands of the trial court and which was confirmed in appeal is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiffs, they obtained 28 cents of property comprised in Sy. No.1025/A as per Ext.A1 dated 28.8.1957 as B schedule item No.1 in Ext.A1 deed. The plaintiff thereafter assigned 12 cents of property to the brother in law of the first plaintiff and the said property is in the absolute enjoyment and possession of the said person. The defendant has property on the eastern side of the said property. There was a well demarcated boundary between the property of the plaintiffs and defendants, which was demolished S.A.150/2000. 2 by the defendant while putting up a construction in his property in 1987. It is necessary to restore the kayyala. In order to avoid further complications, the suit was laid. 3. The defendant resisted the suit. It was contended that the plaint schedule property and the western property are not lying contiguously. He disputed that the brother in law of the first plaintiff has any property on the western side. It is contended that he is having 13 cents in Sy. No.1023/B, 9¾ cents in Sy. No.1025 and 6 cents in Sy. No.1026. The property owned by the defendant, according to him, lies separately bounded on all sides by boundary walls of about 50 years of age. There is no necessity to put up a boundary at all as claimed by the plaintiffs. Disputing the allegations in the plaint, he prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony P.Ws. 1 and 2 and the documents marked as Exts.A1 and A2 from the side of the plaintiffs. The defendant had D.Ws.1 and 2 S.A.150/2000. 3 examined and Exts. B1 and B2 marked. Exts.C1 and C1(a) are the Commission report and plan. The trial court on an appreciation of the evidence came to the conclusion that 9.725 cents, which belonged to the plaintiffs is in the possession of the defendant. Since the plaintiffs limited their claim to the said extent of land, a decree was granted in their favour declaring the title. The relief of recovery of possession was denied by the trial court on the ground that there was no prayer in the plaint to that effect. 5. Aggrieved by the decree, both the plaintiffs as well as the defendant went up in appeal. The defendant preferred A.S. 74 of 1990 and the plaintiffs A.S.108 of 1990. The lower appellate court disposed of both the appeals by a common judgment. The appeal filed by the defendant was dismissed, while the appeal filed by the plaintiffs was allowed. The said judgment and decree are assailed in this Second Appeal by the defendants. 6. The following substantial questions of law are seen raised in the Memorandum of Second Appeal. S.A.150/2000. 4 (a) Can the decree of the trial court, being one passed on the basis of the statement made by the counsel, that though prayed for a larger relief in the plaint a lesser relief may be granted in view of the facts and circumstances of the case, be challenged in appeal, so long as that statement which lead to the passing of the decree remains unchallenged or shown to be erroneous? (b) Whatever be the nature of possession of the property by the defendant, since the possession of the defendant remains undisputed, an a decree for injunction be passed against him? Can the principle that possession follows title be applied to such cases? © Can a decree as prayed for be passed in favour of the plaintiff in a suit for declaration of title and possession, in the absence of establishment of the plaintiff's title to the disputed land and merely on the destruction of the defendant's title by the plaintiff? (d) The plaintiff having claimed the extent within specified boundaries, and the survey records shows the actual extent within the boundary stated is less than what is claimed, can S.A.150/2000. 5 the court grant a relief for larger extent without mending the plaint? When there is conflict between the extent and the boundary, should not the court act upon the boundary and hold that what the plaintiff can legitimately claim is that which is bounded by the boundaries? (e) Is the appeal before the lower court not barred in respect of the claim abandoned before the trial court by the plaintiff?” 7. Learned counsel appearing for the appellant attacked the judgment of the lower appellate court on several grounds. It was pointed out that the lower appellate court as well as the trial court have not considered the issues in the proper perspective. Being a suit for laying of boundary, it is absolutely necessary that the property belonging to the defendant too had to be measured. That has not been done. The observation of the lower appellate court that Ext.B1 document and the extent covered by the same has not been pleaded in the written statement is without basis and is contrary to facts. There is a definite plea in that behalf by the defendant in his written statement. S.A.150/2000. 6 The lower appellate court has also observed that the written statement does not contain derivation of title to the property as set up by the defendant. That is also erroneous. These, according to the learned counsel, show that the lower appellate court has not addressed itself properly to the questions raised and has not perused the evidence on record. 8. Learned counsel drew the attention of this court to the conduct of the plaintiffs before the trial court. Attention was drawn to the statement made in the trial court judgment that the plaintiffs pray for a lesser relief than what had been sought for. Having done so, appeal by him was incompetent. It is also contended that at any rate, the lower appellate court ought not to have granted a decree for mandatory injunction directing the defendant to demolish a portion of his building. 9. Learned counsel appearing for the respondents on the other hand contended that though there may be some misstatements in the judgment of the lower appellate S.A.150/2000. 7 court, that cannot help the appellant at all. Learned counsel took this court through the records and the evidence in the case and pointed out that the decree passed by the lower appellate court is fully justified. Attention was drawn to the fact that the observation of the trial court that there is no relief sought for regarding the recovery of possession is baseless. Relief C in the plaint is that in case it is found that any portion of the property belong to the plaintiffs is in the possession of the defendant, they may be allowed to recover the same. This was omitted to be noticed by the trial court and therefore the prayer was declined. The lower appellate court noticed this fact and granted a decree in that regard also. It was pointed out that the construction put up by the defendant, projecting into the property belong to the plaintiffs is recent and therefore there is no justification for the grievance that he ought not have been asked to remove it and he should be allowed to retain the same. Learned counsel also pressed that the findings of the courts below are based on facts and the conclusions have been arrived at S.A.150/2000. 8 on a proper appreciation of the evidence in the case. In Second Appeal, it is contended that no interference is called for. 10. It will be useful to refer to the Commissioner's report. The Commissioner was deputed to measure the plaint schedule property. The Commissioner has noticed that Sy. No.1025 as per the settlement register though is said to contain 39 cents, on actual measurement it is seen that only 33.700 cents are available. The Commissioner also noticed that the property said to have been sold by the plaintiffs to the brother-in-law of the first plaintiff though showed an extent of 12 cents, in fact he had 13.450 cents. The Commissioner has also noticed that even though the plaintiffs claimed that as per Ext.A1 partition deed they obtained 28 cents, in fact they had obtained only 23.175 cents. The Commissioner has pointed out that 23.175 cents identified by him is shown as EFGHJKLMNPQRSTVW. The 13.450 cents in the possession of the brother in law of the first plaintiff is shown as EFGHJYZQRSTVW. He has also S.A.150/2000. 9 pointed out that the property which belonged to the plaintiffs, which is currently in the possession of the defendant is LMNPZYK. One may recollect here that the plaint is for relief in respect of 16 cents. 11. The courts below found that the plaintiffs have been able to establish title to the suit property. Even though the defendant claimed that he had obtained 9¾ cents in Sy. No.1025, the court below on an evaluation of the evidence found that there is no evidence regarding the same. 12. The defendant as per Ext.B1 though received properties, did not have any property in Sy. No.1025. At the time of evidence, his case was that he had purchased the suit property comprised in Sy. No. 1025 from one Kesavan. Significantly enough, that document was not produced. Therefore the claim of the defendant that he had 9 ¾ cents in Sy. No.1025 remained unsubstantiated. On the other hand Ext. A1 produced by the plaintiffs showed that as per S.A.150/2000. 10 the said partition deed the plaintiffs had 28 cents in Sy. No.1025. 13. The findings of the courts below as mentioned above seems to be fully justified. Learned counsel appearing for the appellant was unable to show that the findings were either contrary to the evidence on record or were perverse. Going by the records, the finding seems to be fully justified. 14. It is true that the plaintiffs before the trial court had sought for a lesser relief. The context in which that prayer was made has to be looked into. As already noticed, the claim of the plaintiffs was in respect of 16 cents. On measurement the commissioner found that the actual extent available was only 9.725 cents. It was therefore prayed by the plaintiffs that they may be given a decree in respect of that extent, ie., 9.725 cents. Strictly speaking the concession made cannot be said to be a claim for lesser relief. The prayer was to the effect that whatever available may be granted. Therefore, the contention that S.A.150/2000. 11 having conceded for a lesser extent, the plaintiffs cannot appeal is without substance. 15. Learned counsel appearing for the appellant pointed out that the Commissioner has noticed that the boundary wall on certain sides is more than 50 years of age. It is pointed out that the building is also an old one. The plaintiffs, who are neighbours of the defendant stood by and watched the defendant constructing the building. If a portion of it had been projected into his property, they ought to have objected it. Having stood and watched the defendant's construction going on and long thereafter their claim that that portion should be demolished does not stand to reason. Therefore the decree to that extent should be set aside. 16. As rightly pointed out by the learned counsel for the respondents, there is no substance in the above contention. It is true that the commissioner in his report has noticed that the building is aged about 10 years. But the Commissioner has also specifically stated that the portion S.A.150/2000. 12 which projects into the property belonging to the plaintiffs has been constructed very recently. This is not shown to be wrong. If that be true, the claim of the defendant that he is entitled to retain that portion seems to be without basis. 17. It could therefore be seen that there is absolutely no merit in any of the contentions taken by the appellant. Apart from the said fact, as rightly pointed out by the learned counsel for the respondents, the decisions of the courts below are based on facts and that were established from the evidence on record. No question of law, much less any substantial question of law arises for consideration in this Second Appeal. The Second Appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A.150/2000. 13 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 150 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 04.06.2010