IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 RSA.NO. 719 OF 2008() --------------------- AS.92/2004 OF PRL.SUB COURT,IRINJALAKUDA OS.636/1994 OF ADDITIONAL MUNSIFF COURT IRINJALAKUDA .................... APPELLANTS – APPELLANTS - PLAINTIFFS ------------------------------ 1. PAULSOE, AGED 62, S/O. MUTTATH YOHANNAN, VELLIKULANGARA VILLAGE, MUKUNDAPURAM. 2. MARIYAMMA, AGED 53, W/O. PAULOSE, MUTTATH HOUSE, VELLIKULANGARA VILLAGE, MUKUNDAPURAM. BY ADV. SRI.RENJITH THAMPAN SMT.P.R.REENA RESPONDENT(S): RESPONDENTS 2 TO 6 LEGAL REPRESENTATIVES OF 1ST DEFENDANT --------------------------------- 1. CHINNAMMA, AGED 49, W/O. MEKATU MATHAI, VELLIKULANGARA VILLAGE, -DO- 2. JOISY, AGED 28, D/O. IST AND 2ND RESPONDENT, -DO- 3. BINSY, AGED 26, D/O. IST AND IIND RESPONDENT, -DO- 4. LINSY, AGED 23, D/O. IST AND 2ND RESPONDENT, VELLIKULANGARA VILLAGE. 5. ELENDOS, AGED 20, D/O. IST AND 2ND RESPONDENT, VELLIKULANGARA VILLAGE. ADV. SRI.T.N.MANOJ FOR R1, 5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 5.3.2010 ALONG WITH R.S.A. NO.118 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.719 OF 2008 AND R.S.A. NO.118 OF 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of March, 2010 J U D G M E N T --------------------- Respondent Nos.1 and 5 in these appeals appear through Advocate Shri T.N. Manoj. In R.S.A. No.719 of 2008 service of respondent Nos.2 to 4 has been declared complete. In R.S.A. No.118 of 2010 since respondent Nos.1 and 5 as legal representatives of deceased defendant are already on record and since in R.S.A. No.719 of 2008 the very same respondent Nos.2 to 4 remain absent it is not necessary to repeat notice to them in R.S.A. No.118 of 2010. Hence notice to them is dispensed with. 2. These appeals arise from judgment and decree of the court of learned Sub Judge, Irinjalakuda in A.S. Nos.92 and 93 of 2004 respectively, arising from common judgment and decree in O.S.Nos.636 of 1994 and 82 of 1998, respectively. O.S. No.636 of 1994 is a suit for declaration of right of easement by prescription to get lateral support for two mud walls, described as 'Edamattom' and 'Athirthimattom' towards the northern portion of the property of plaintiffs and for injunction against the defendant removing the R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010 -: 2 :- lateral support for the said Athirthimattom. Defendant in O.S. No.636 of 1994 filed O.S.No.82 of 1998 against the plaintiffs in the court of learned Additional Munsiff, Irinjalakuda for fixation of northern boundary of plaint B schedule therein (property of plaintiffs in O.S. No.636 of 1994) and for consequential injunction. Learned Munsiff treated O.S. No.636 of 1994 as the main suit and recorded evidence in that case. Parties are referred to as plaintiffs and defendant as referred to in O.S. No.636 of 1994 for convenience. 3. There was an order of interim injunction passed in O.S.No.636 of 1994 against the defendant therein demolishing the Mattom referred to therein. According to the plaintiffs on account of a slight difference in the name of father of defendant in the order of injunction, defendant refused to accept the order and in the meantime a portion of the Athirthimattom was demolished. Consequent to that, plaint in O.S. No.636 of 1994 was amended to incorporate a prayer for mandatory injunction as well. According to the plaintiffs plaint A schedule property therein belonged to and is in their possession as per document Nos.926 and 927 of 1987. Property of defendant is plaint B schedule (that property is plaint A R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010 -: 3 :- schedule in O.S.No.82 of 1998) situated on the north of their property. It is also their contention that these properties are lying slope from north to south and to prevent soil erosion Mattoms were constructed by the predecessors of plaintiffs. It is further case of plaintiffs that defendant attempted to demolish the said Mattoms and excavated the land which resulted in loss of lateral support on the side of the property of plaintiffs. Defendant contended that the 'Athirthimattom' referred to in the plaint is not the boundary of the property of the plaintiffs and there is a thodu and a mud bund which separated the properties of plaintiffs and defendant. Edamattom referred to in the plaint belonged to the defendant. He stated that plaint B schedule in O.S.No.636 of 1994 (which is plaint A schedule in O.S.No.82 of 1998) belonged to him which is situated at a higher level from the property of the plaintiffs and plaintiffs tried to demolish the boundary Mattom. Learned Munsiff came to the conclusion that boundary between the properties of the parties could be fixed along the red line shown in Ext.C4(a). Accordingly relief was granted to both the parties. But the prayer of plaintiffs for mandatory injunction to restore the Mattoms which were allegedly destroyed by the defendant was refused for the reason that there R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010 -: 4 :- was no reliable evidence to show that the said Mattoms were constructed by the predecessors of plaintiffs for maintenance of their property. First appellate court has confirmed judgment and decree and hence these Second Appeals raising by way of substantial questions of law whether finding of the courts below that plaintiffs are not entitled to get mandatory injunction prayed for is legally correct and whether the finding regarding respective possession of contestants is legally sustainable. Learned counsel for plaintiffs (defendants in O.S.No.82 of 1998), appellants in these Second Appeals would contend that the measurement made by the Taluk Surveyor and Village Officer cannot be accepted and hence courts below ought not have accepted Exts.C4(a) for fixation of boundary. It is also contended that even as per the measurement made by the Village Officer (Ext.C4(b) defendant has been in possession of the property more than his entitlement as per the document of title produced by him and in such a situation without measurement of properties with reference to all documents of title boundary between the properties ought not have been fixed. Further contention is that while seeking fixation of boundary what the defendant sought is not fixation of southern boundary of his R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010 -: 5 :- property but fixation of northern boundary of property of the plaintiffs. This approach according to the learned counsel cannot be permitted in a suit for fixation of boundary. As to the refusal of courts below to grant mandatory injunction it is contended that there is sufficient evidence on record to show that it is after the order of injunction was passed by the trial court as reported by the Advocate Commissioner also that the Mattoms were destroyed by the defendant. It is contended by learned counsel for defendant that it is taking into account the nature and terrain of the land and the fact that measurement of the properties was not mentioned in the documents of title of both parties that measurement was made with reference to the actual possession of the properties by the parties since there was no other manner of possibility to measure the properties. According to the learned counsel Ext.C4(a), report of the Taluk Surveyor with reference to possession of the properties and other relevant documents would show that plaintiffs were in possession of land less than their actual entitlement as per their document of title. As such there is no reason for plaintiffs to be aggrieved about the boundary fixed as per Ext.C4(a). Learned counsel for defendant supported the judgment and decree of the R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010 -: 6 :- courts below on all counts. 4. So far as fixation of boundary is concerned there is no dispute regarding the respective possession claimed by the parties. True when there is dispute regarding title and possession boundaries could be fixed only after settling such dispute. But as I stated title or respective possession of parties is not in serious challenge in these cases. So far as the measurements made by the Taluk Surveyor and Village Officer are concerned Ext.C4(a) is the plan prepared by the Taluk Surveyor while Ext.C4(b) is the plan prepared by the Village Officer. It is not disputed that as per the documents of title of defendant, entitlement of defendant is for 1.77 acres in the survey number referred to therein. Village Officer however, on measurement found actual area in the possession of defendant as 1.81 acres. In Ext.C4(a) Taluk Surveyor has, after measurement reported that actual extent in the possession of defendant is 1.75 acres i.e., two cents less than his actual entitlement as per the document of title. It is for the said 1.75 acres in the possession of the defendant that Taluk Surveyor has fixed the southern boundary along the red line marked in Ext.C4(a) and that is what the trial court has accepted and first appellate R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010 -: 7 :- court has confirmed. 5. So far as measurement with reference to other documents if any is concerned it is pointed out by learned counsel for defendant that documents of title relied on by the parties did not refer to measurement of properties. Admittedly these properties formed part of a larger extent and parties purchased their respective property from the common owner. Terrain of the land which is the side of a hillock and that properties are lying in slope towards south are taken into account. In such a situation the exact measurement with precisian may not be possible. That is why there occurred difference between the measurements made by the Taluk Surveyor and Village Officer. Trial court has taken note of the difference in the measurement and the Taluk Officer being better qualified in the field by experience, his measurement and plan (Ext.C4(a) was preferred to that of the Village Officer (Ext.C4(b). I do not find anything illegal in the trial court adopting that view in the facts and circumstances of the case. It has also come in evidence that the area in the possession of the plaintiffs is in excess of what is stated in their documents of title. Hence it is not a case of plaintiffs loosing any property by the measurement made by the Taluk R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010 -: 8 :- Surveyor as seen from Ext.C4(a). In the circumstances trial court is justified in fixing the boundary between the properties along the red line marked in Ext.C4(a). That finding does not involve any substantial question of law requiring interference by this Court. 6. What remained for decision is whether courts below were justified in refusing mandatory injunction prayed for by the plaintiffs. Learned counsel has invited my attention to Ext.C1, report of the Advocate Commissioner where there is reference to the demolition of the disputed mud wall. It is also pointed out that none of the courts below have found where exactly the Mattom situate whether, it is in the property of plaintiffs or defendant and lack of finding in that regard is likely to create further problems between the parties. Learned counsel for defendant was not able to point out any finding in the judgments of the courts below as to where exactly the Athirthimattom was situated, whether it is in the property of plaintiffs or defendant. So far as the Edamattom is concerned going by the discussion of the learned Munsiff in paragraph 28 of his judgment the view taken is that Edamattom is situated in the property of the defendant. So far as the prayer for mandatory injunction for restoration of Athirthimattom is concerned R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010 -: 9 :- what the Commissioner has reported in Ext.C1 is that on the eastern portion of Edamattom beyond the disputed properties there was a demolition but owners of the property at that portion have not come up with any grievance regarding the demolition. Learned Munsiff also came to the conclusion that evidence on record is insufficient to hold that the plaintiffs or their predecessors had been maintaining the disputed Athirthimattom. It is in the above circumstances that prayer for mandatory injunction was not granted. On the facts and circumstances brought out I do not find that it involved a substantial question of law so that this Court should interfere with the discretionary jurisdiction exercised by the learned Munsiff and as confirmed by the first appellate court. 7. So far as the prayer for lateral support is concerned I do not think it necessary to go into that issue in these Appeals. I make it clear that if on account of any of the acts of defendant, plaintiffs have apprehension that their property (i.e., property on the south of red line marked in Ext.C4[a]) is likely to loose lateral support, it will be open to them to seek appropriate reliefs based on such cause of action. 8. In other respects relief has been granted to both sides R.S.A. No.719 of 2008 & R.S.A. No.118 of 2010 -: 10 :- based on boundary demarcation made by the Taluk Surveyor in Ext.C4(a) along the red line. I make it clear that plaintiffs will be entitled to the property on the south of the boundary mark in red line in Ext.C4(a) while entitlement of defendant will be for the property on the north of the said boundary mark in red line. Subject to the observation made above, both the Second Appeals are dismissed in limine. Interlocutory Application Nos.1741 & 1742 of 2008 in R.S.A. No.719 of 2008 and 281 & 282 of 2010 in R.S.A. No.118 of 2010 shall stand closed. THOMAS P.JOSEPH, JUDGE. vsv