IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 RSA.No. 242 of 2010() --------------------- AS.91/2001 of SUB COURT,NEYYATTINKARA OS.848/1994 of I ADDL.MUNSIFF COURT.,NEYYATTINKARA .................... APPELLANT/APPELLANT/3RD DEFENDANT ------------------------------------------- A.VIJAYAN, S/O. ADICHAN NADAR, AGED 53, PAINKARAVILA ROADARIKATHU VEEDU, ARAYOOR DESOM, CHENKAL VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS/RESPONDENTS 2 AND 3/DEFENDANTS 1 AND 2 /ADDITIONAL RESPONDENTS 4 TO 9/LEGAL HEIRS OF THE PLAINTIFF: --------------------------------------------------------------- 1. SUKUMARAN, S/O. ADICHAN NADAR, AGED 46, CHAVALLOOR POTTAKARAKKATTU PUTHEN VEEDU, ARAYOOR DESOM, CHENKAL VILLAGE, NEYYATTINKARA. 2. SANTHA, W/O. SUKUMARAN AGED 41, -DO-DO- 3. VIJAYAN, S/O. LATE JANARDHANAN, AGE ABOUT 48, KAKKAMOOLA KANNAMKUZHI VEEDU, KALLIYOOR DESOM AND VILLAGE, THIRUVANANTHAPURAM TALUK. 4. RAJAN, S/O. LATE JANARDHANAN, AGED ABOUT 46, ARAYOOR KAITHAPARAMBU VEEDU, ARAYOOR DESOM, CHENKAL VILLAGE, NEYYATTINKARA TALUK. 5. JAYARAJ, S/O. LATE JANARDHANAN, AGE ABOUT 43, -DO-DO- 6. KISHORE KUMR, S/O. LATE JANARDHANAN, AGED 40, -DO-DO- 7. SHEELA, D/O. LATE JANARDHANAN, AGED 32, -DO-DO- 8. LEELA, W/O. LATE JANARDHANAN, AGED ABOAUT 77, -DO-DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.242 of 2010 --------------------------------------- Dated this 03rd day of March, 2010 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Neyyattinkara in A.S.No.91 of 2001 confirming judgment and decree of learned Additional Munsiff-1, Neyyattinkara in O.S.No.848 of 1994. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. According to the plaintiff, he acquired title and possession of plaint A schedule as per Ext.A1, assignment deed No.1136/1123, redeemed the mortgage over it and purchase its jenm right. While he was in possession and enjoyment of the said property, he sold 5 cents out of the said property to defendant Nos.1 and 2 as per Ext.B1, assignment deed No. 1490 of 1982. Defendant Nos.1 and 2 transferred that property to defendant No.3. There is a panchayath road going along the west of plaint A schedule which was widened making use of the portion of the properties and, the portion taken for widening of the road is described in plaint C schedule. According to the plaintiff due to the widening of road himself and defendants lost a portion of their respective properties. Plaintiff prayed for a declaration of his title to the property as per Ext.A1 excluding the portion assigned to defendant Nos. 1 and 2 and portion taken for widening the road and R.S.A.No.242 of 2010 2 also for putting up boundary. After filing of the suit, plaint was amended alleging that defendants trespassed into a portion of plaint A schedule and put up a building. That portion is described as plaint B schedule and the building is described as plaint D schedule. Defendant Nos. 1 to 3 contended while admitting that defendant Nos.1 and 2 acquired title and possession of 5 cents as per Ext.B1 out of the property belonging to the plaintiff as per Ext.A1, that day also purchased 4.5 cents on its east from Daveed George as per sale deed No.651/87 and thus they are entitled to and is in possession of 9.5 cents altogether which lie contiguous. It is while so that defendant Nos.1 and 2 sold a portion of the said property to defendant No.3 as per sale deed No.2128/1987 (Ext.B2). They denied that there was any attempt to trespass into the property of plaintiff. Learned Munsiff found from the evidence that portions of property belonging to the plaintiff and defendants were taken for widening the road sometime in the year 1988 as the evidence revealed and excluding that portion and the portion sold to defendant Nos.1 and 2, plaintiff is entitled to and is in possession of the plot marked QRST in Ext.C1(a), 3.599 cents while entitlement of the defendants is for plot marked as SLMT, 2.106 cents. Trial court came to the conclusion that D schedule structure was put up by defendants encroaching into property belonging to the plaintiff and accordingly directed defendants to remove that portion of the R.S.A.No.242 of 2010 3 structure. Trial court also directed that boundary of the property belonging to the plaintiff has to be fixed along TS-RS lines shown in Ext.C1(a). Defendant Nos.1 and 2 did not challenge judgment and decree obviously because property covered by Ext.B1 had already been assigned to defendant No.3 as per Ext.B2. Wife of defendant No.3 filed an appeal before the first appellate court with an application (I.A.No.944 of 2009) to appoint her as next friend of defendant No.3/appellant on the allegation that defendant No.3/appellant is suffering from insanity from the year 1990 onwards. That application was opposed by the plaintiff. Though no separate enquiry was conducted by the learned Sub Judge on I.A.No.944 of 2009, that matter also enquired into in the course of hearing the appeal and learned Sub Judge found that there was nothing on record to show that defendant No.3 was suffering form any mental unsoundness which prevented him from filing the appeal. The appeal was found to be not maintainable. Learned Sub Judge proceeded to dispose of the appeal on merit, confirmed finding of learned Munsiff and dismissed the appeal. That is under challenge in the second appeal raising by way of substantial questions of law whether first appellate court was justified in holding that wife of the appellant could not be allowed to proceed with the appeal as next friend and whether courts below were justified in declaring title of the plaintiff without even a discussion of the relevant R.S.A.No.242 of 2010 4 documents pertaining to title claimed by the plaintiff and granting relief accordingly. Learned counsel has contended that at the time appeal was preferred before the first appellate court defendant No.3 was suffering from mental unsoundness and hence his wife was competent to file the appeal representing him as next friend. It is also the argument of learned counsel that this being a suit based on title, plaintiff has to succeed on the strength of his title and any amount of admission made by the defendants cannot confer title on plaintiffs. Learned counsel has placed reliance on the decisions in Ambika Prasad Thakur & Ors. Vs. Ram Ikbal Rai (AIR 1966 SC 605), and Kunhali Umma Vs. Rabi Umma (1997 (2) KLT 936). 3. So far as the issue regarding wife of the appellant/defendant No.3 preferring the appeal before the first appellate court is concerned, though learned Sub Judge observed that appeal at the instance of the wife is not maintainable for lack of evidence regarding the alleged mental unsoundness of defendant No.3, learned Sub Judge proceed to decide the appeal on merit. It is that judgment and decree which are under challenge in the second appeal filed by defendant No.3 directly. Therefore it is not as if defendant No.3 is disowning the appeal filed by his wife on his behalf before the first appellate court and he cannot also be heard to say that the appeal before the first appellate court was not competent. So far R.S.A.No.242 of 2010 5 as mental unsoundness of defendant No.3 pleaded by his wife before the first appellate court is concerned, claim is that defendant No.3 was insane from 1990 onwards but in the trial court nobody had such a contention. It has come in evidence as discussed in the judgment under challenge that defendant No.1 is the direct brother of defendant No.3 and defendant No.2 is the wife of defendant No.1 and all of them took joint defence in the trial court by filing a joint written statement. Learned Sub Judge has also stated that defendant No.3 was vehemently contesting the suit and there was no mention, at any point of time that he was suffering from mental infirmity so that he was incapable of protecting his interest. No evidence was also produced in by the wife of appellant/defendant No.3 in support of I.A.No.944 of 2001. True Order 32 Rule 15 of the Code of Civil Procedure (for short, “the Code”) requires an enquiry to be conducted when a party before court is suspected to have mental infirmity making it difficult for such party to protect his interests. But no particular form of enquiry is prescribed. Even perusal of affidavit or medical certificate if any, produced could amount to enquiry as contemplated under Order 32 Rule 15 of the Code. The first appellate court has conducted an enquiry as to the alleged mental infirmity of defendant No.3 and come to the conclusion that the allegation is not established. That finding is justified by the fact that his appeal is filed by defendant No.3 directly. R.S.A.No.242 of 2010 6 4. Next contention is that courts below have not discussed the issue regarding title claimed by the plaintiff based on Ext.A1. Issue Nos.1 and 2 framed by the trial court are whether the description of the plaint schedule is correct and whether plaintiff have title and possession of the said property. Issue No.3 is whether the declaration prayed for is allowable. With those issues on record parties have gone into trial court and adduced evidence. Ext.A1 was produced by the plaintiff to prove his title over plaint A schedule which originally had an extent of 12 cents as identified by the Advocate Commissioner in Ext.C1(a) as plot, PQRSLMNO. It is out of the said 12 cents that defendant Nos.1 and 2 purchased 5 cents as per Ext.B1, assignment deed No.1490/1982 and later sold the said 5 cents to defendant No.3 as per Ext.B2. These facts have come in evidence. The documents relied by plaintiff is also proved in evidence as Exts.A1 to A3. It is based on the respective documents of title relied on by the parties that the Advocate Commissioner with the assistance of Taluk Surveyor was appointed to measure the property. They have done their job and Exts.C1 and C1(a) are the report and plan. I stated that 12 cents covered by Ext.A1 has been identified by the Advocate Commissioner and Taluk Surveyor by PQRSLMNO plot and the plaint B schedule in the possession of the plaintiff after widening of the road is identified as QRST plot measuring 3.599 cents (excluding the portions surrendered R.S.A.No.242 of 2010 7 or widening of the road and the 5 cents sold to defendant Nos.1 and 2 as per Ext.B1). Similarly entitlement of defendant No.3, as per Exts.B1 and B2 excluding the portion taken for the road is for plot SLMT measuring 2.106 cents. These matters have been discussed by the learned Munsiff in his judgment. A detailed discussion regarding the title and possession was not made but that is not fatal in view of the facts, evidence and circumstances stated above and referred to in the judgment of learned Munsiff including that there was no dispute regarding title of the plaintiff as per Ext.A1. It is not a case where the courts below have merely relied on the admission of defendants in favour of title claimed by the plaintiff. The decision relied on by learned counsel only said that admission cannot confer title. That proposition cannot be disputed also. But one must bear in mind that admission is the best form of evidence. Plaintiff is not merely relying on the admission if any made by the defendants as to his case and instead, produced documents and gave oral evidence in that line. Advocate Commissioner and Taluk Surveyor identified the properties with reference to the relevant title deeds. I also find on going through the memorandum of first appeal preferred by or on behalf of the appellant before the first appellate court that no contention was raised about lack of detailed discussion in the judgment of trial court. In such a situation, I am not inclined to accept contention raised by learned R.S.A.No.242 of 2010 8 counsel for appellant that there was no discussion regarding title claimed by the plaintiff and therefore, judgments under challenge should fall to the ground. I must also bear in mind that it is based on the title claimed by plaintiff and proved by Exts.A1, C1 and C1(a) that trial court granted relief in favour of the plaintiff and that was confirmed by the first appellate court. In my view no substantial question of law is involved in the above circumstance. 5. Now coming to the facts of the case, Ext.A1 shows that plaintiff acquired title over 12 cents and that plot has been identified by Advocate Commissioner in Ext.C1(a) as PQRSLMNO. Though disputed by the defendants, it is the case of plaintiff that a portion of property assigned to defendant Nos.1 and 2 as per Ext.B1 was also used for widening of the road. Evidence on record shows that the widening was effected in the year 1988. There is evidence to show that widening was effected after Ext.B1. Taluk Surveyor has measured the property with relevant documents and found that portion of property belonging to the plaintiff and defendant Nos.1 and 2 as per Exts.A1 and B1 respectively were taken for widening the road. It is less that area the Advocate Commissioner has identified the properties in Ext.C1(a) and it is based on Ext.C1(a) that relief has been granted to the plaintiff. That finding is based on the evidence on record and do not involve any substantial question of law as contended by learned R.S.A.No.242 of 2010 9 counsel. 6. Lastly it is contended that at any rate though subsequent to the institution of the suit case of plaintiff was that defendants trespassed into plaint B schedule, took possession thereof and constructed a building thereon and hence without asking for recovery of possession trial court could not have granted a decree for mandatory injunction and fixation of boundary. According to the plaintiff, after the institution of suit defendants encroached into a portion of the suit property and put up a structure (plaint D schedule). Though defendants have encroached into a portion of the property over which plaintiff have title and possession and put up a structure that does not mean that defendants are in settled possession of the disputed portion. 'Possession' as understood in law involves the right to exclude all others. 'Possession' is distinguishable from 'occupation' which may be lawful or unlawful. In this case the alleged encroachment and construction of plaint D schedule building as evidence revealed, took place after institution of the suit. That cannot amount to possession of property with the defendants as understood in law. The mere fact that defendants while putting up the structure have transgressed their limits and gone into a portion of the suit property does not amount to possession. Trial court directed the defendants to demolish that portion of the structure from plaint B R.S.A.No.242 of 2010 10 schedule and that in my view, and in the light of the facts and evidence on record, is legal and proper. 7. On hearing learned counsel for appellant/defendant No.3 and on going through the judgments under challenge I do not find any substantial question of law involved in the appeal requiring a decision. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/