IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 SA.No. 603 of 1997() -------------------- AS.297/1987 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.269/1984 of SUB COURT, NEDUMANGAD .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------- 1.MOHAMMED KUNJU ABOO BACKER KUNJU PROPRIETOR, AJIMA HOTEL, NEAR MUSLIM JAMA ATH MOSQUE NEDUMANGAD, THEKKUMKARA MURI NEDUMANGAD VILLAGE 2. AISHA BEEVI SAINA BEEVI, RESIDING AT -DO- BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. RESPONDENTS/APPELLANTS/PLAINTIFFS ------------------------------------------------------------ 1.JAILANI ABDUL SALAM, HASEENA MANZIL NEAR MUSLIM JAMA ATH MOSQUE, THEKKUMKARA MURI NEDUMANGAD VILLAGE 2. SHAHIDA BEEVI SHARIFA BEEVI, RESIDING AT -DO- 3. NOOHUKANNU SHEREEF, RESIDING AT HASEENA MAZIL THEKKUMKARA MURI, NEDUMANGAD VILLAGE FROM KUZHIVILA THADATHARIKATHU PUTHEN VEEDU CHEKKAKONATHU MURI, KARAKULAM VILLAGE ADV. SRI.R.S.KALKURA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.09.20011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.603 of 1997 ------------------------------------- Dated this the 22nd day of September 2011 Judgment The defendants in OS No.269/84, who suffered a decree at the hands of the lower appellate court are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The first plaintiff is the husband of the second plaintiff and the third plaintiff is the father of the second plaintiff. The plaint schedule property originally belonged to one Samuel. After his death, his sons namely Joseph Samuel Albert Sirin and Bennet, obtained the property as per a Will, namely deed No.6/1119 whereby the properties were jointly allotted to them. They entered into a partition deed as evidenced by Ext.A3 document. Plaint A schedule item was allotted to Albert Sirin, the predecessor-in-interest AS 603/97-E 2 of the plaintiff while the other share came into the possession of the defendants. The plaintiffs would point out that there was an old building in the plaint schedule property and they had put up a new building therein. They would also point out that the properties were separated by well defined boundaries. The plaintiffs would submit that the defendants have no manner of right over the property obtained by the plaintiffs. They say that the defendants are trying to trespass into the open space left as per rules, for construction of building by the plaintiffs and they have no right to do so. Since the plaintiffs apprehended trespass, the suit was laid. 3. The defendants resisted the suit and pointed out that the suit is without any bona fides and the allegations made in the plaint are contrary to facts. There was an earlier litigation with regard to a boundary dispute as OS No.37/73 and the said suit was ultimately AS 603/97-E 3 disposed of on the basis of a compromise entered into between the parties. The defendants pointed out that the plaintiffs could have obtained the property from their predecessors-in-interest only on the basis of the boundary determined as per Ext.A6 and therefore, the plaintiffs cannot seek to have the boundary laid beyond the boundary determined as per Ext.A6 based on the title deeds on the ground that the agreement entered into between the parties evidenced by Ext.A6 decree is a personal covenant. They would point out that as per the decree so passed on the basis of compromise, a pathway having five feet width was left between the properties of the plaintiffs and the defendants and that is liable to be retained. Pointing out that the plaintiffs are now trying to annexe the pathway to their property, they prayed for dismissal of the suit. AS 603/97-E 4 4. On the above pleadings, issues were raised. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A14 from the side of the plaintiffs. The defendants had DWs 1 to 3 examined and Exts.B1 and B2 marked. Exts.C1 and C2 are the commissioner's report and plan. 5. The trial court found that the rights of the parties to a great extent, are governed and controlled by Ext.A6 decree, which was passed on the basis of the compromise between the predecessors-in-interest of the respective parties. It also found that the commissioner has not properly identified the plaint schedule property and therefore, it is not possible to grant a decree in favour of the plaintiff. Accordingly, the suit was dismissed. 6. The aggrieved plaintiff carried the matter in appeal as AS No.297/87 before the District Court, AS 603/97-E 5 Thiruvananthapuram. The lower appellate court was of the view that the plaintiffs are not bound by Ext.A6 decree as it amounts only to a personal covenant and they can ignore the same and have the eastern boundary fixed on the basis of the documents of title obtained from the sons of Samuel, who, by a Will bequeathed the property to his sons. It is also found that the commissioner had properly identified the properties and the court below was in error in holding otherwise. Accepting the commissioner's report and plan, a decree was granted to the plaintiffs. That brings the defendants before this court. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Is it not illegal in allowing to put up boundary when it is found already there is a boundary in existence ? (2)Is it not illegal in holding that the covenant entered AS 603/97-E 6 into by the prior owners and which culminated in a decree is not binding on the successors-in-interest ? (3)Is it not illegal in discarding the documentary evidence ? The correctness of which is illegally presumable on the ground that it cannot be accepted without further proof . (4)Is it not illegal in holding that the plaintiff is not bound by the decree in which his predecessor-in-interest was a party ? (5)Is it not illegal in holding that the red marked line in C2 is the boundary of the property after discarding the evidence of boundary on the other side of the property ? (6)Has not the defendants acquired special immunity under the doctrine of non- derogation from grant ? 8. The learned counsel for the appellants pointed out that the lower appellate court has fallen into AS 603/97-E 7 gross error in ignoring Exts.A6, A13 and A14 documents. There had been previous litigations between the parties and there was also a dispute regarding the western boundary of the plaint schedule property which also resulted in a decree. The learned counsel drew attention of this court to the terms of Ext.A6 and pointed out that by no stretch of imagination, it could be said to be only a personal covenant and since the plaintiffs had no notice about it, they could ignore the same and have the eastern boundary fixed on the basis of the documents of title obtained by them. The learned counsel went on to point out that on going through Ext.A6, it can be seen the the predecessor- interest of the plaintiffs had the eastern boundary fixed and thereafter the plaintiffs cannot be heard to say that they are not bound by the decree. They cannot get land in excess of what their predecessors-in-interest had AS 603/97-E 8 obtained by virtue of Ext.A6 decree. It is also pointed out that the commissioner had started measurement from the western boundary of the plaintiffs' property which was the disputed boundary and that has also resulted in a wrong report and plan being prepared and filed by the commissioner. These vital aspects have been omitted to be noticed by the lower appellate court and the lower appellate court has based its conclusions on conjunctures and surmises and not on legal evidence. The counsel pointed out that the judgment and decree of the lower appellate court are unsustainable in law. 9. Per contra, the learned counsel for the respondents pointed out that the lower appellate court has considered the evidence in considerable detail and has come to the conclusion that the plaintiffs are entitled to ignore Ext.A6 decree as that confers only a AS 603/97-E 9 personal covenant and it does not confer a proprietary interest on the property which is binding on the subsequent transferees. It is also pointed out that the plaintiff had no notice of the compromise decree entered into between their predecessors-in-interest and if that be so, going by S.40 of the Transfer of Property Act, the terms of Ext.A6 are not binding on them. The learned counsel also pointed out that an old building was standing in the property of the plaintiffs, which they have pulled down and a new structure was put up. The commissioner has measured the property and has given evidence in that regard. There is nothing to show that the report is either wrong or cannot be accepted. According to the learned counsel, the lower appellate court was perfectly justified in decreeing the suit. 10. After having heard the learned counsel on both sides and perusing the records, this court finds it AS 603/97-E 10 difficult to accept the contentions put forward by the learned counsel for the respondents. It is not in dispute that the property originally belonged to one Samuel. He bequeathed his property to his two sons, who partitioned the properties between them. It is also not in dispute that the parties to the present suit are successors-in-interest of the sons of Samuel, who partitioned the property. It cannot be disputed that the previous suit OS No.37/73 between the predecessors- in-interest of the plaintiffs and defendants was with reference to the very same property. That related to the determination of the eastern boundary of the property of the predecessors-in-interest of the plaintiffs and defendants. It appears that the parties entered into a compromise and a decree was passed based on the compromise. Ext.A6 is the said compromise decree. Going through Ext.A6, it is seen that the plaintiffs AS 603/97-E 11 therein had already fixed the boundary on the eastern side. Admittedly, the assignment in favour of the plaintiffs is subsequent to Ext.A6. It is also seen from the records that there was a dispute regarding the western boundary of the property of the plaintiffs and that was determined in OS No.217/83. Exts.A13 and A14 are the commissioner's report and plan filed in the said suit. 11. The trial court found that Ext.A6 could not be simply ignored by the parties and the plaintiffs cannot seek to have his reliefs granted ignoring Ext.A6. It also found that Exts.A13 and A14 which also related to plaint schedule property, did not tally completely with the present commissioner's report and plan. Moreover, it was found that the commissioner's report was thoroughly unsatisfactory and that it could not be said that the property has been properly identified. AS 603/97-E 12 12. The lower appellate court, on the other hand, felt that the commissioner's report is acceptable and Ext.A6 is only a personal covenant. It could not be said that either Ext.A6, A13 or A14 are totally irrelevant and they have nothing to do with the subject matter of the suit. Apart from the above fact, the western boundary of the plaint schedule property was the disputed boundary whereas the eastern boundary was an admitted one. Normally, in order to identify the property of the plaintiffs and defendants, who obtained it from a common ancestor, one would have expected the commissioner to measure the property from the eastern side which was the undisputed boundary of the properties. Even assuming that Ext.A6 has bearing on the issue, it is necessary to determine the eastern boundary of the property. One would have expected the trial court when it found the commissioner's report to be AS 603/97-E 13 unsatisfactory, to set aside the same and direct the Commissioner to prepare a fresh report. 13. Whatever that be, it is difficult to accept the finding of the lower appellate court that the commissioner has properly identified the property when viewed in the light of Exts.A6, A13 and A14. It has come out in evidence that there was a way on the western side of the plaint schedule property also which was later widened. The defendants have a case that it is possible that the plaintiffs might have lost some extent of their properties when the way was widened. That is a matter to be ascertained. Whatever that be, it is very evident that there has not been any proper identification of the properties so that the eastern boundary of the plaint A schedule could be fixed with reference to the documents already made mention of. It is felt that in the interest of justice, an opportunity should be given to the AS 603/97-E 14 plaintiffs to have their properties properly identified. For that purpose, it is also necessary to identify the property of the defendants since both of them have obtained their properties from a common ancestor. It is difficult to accept the findings of the lower appellate court in this regard that the commissioner has properly identified the property and the eastern boundary of plaint A schedule fixed by the commissioner is acceptable. In the result, the judgment and decree of the courts below are set aside and the matter is remanded to the trial court for fresh determination in accordance with law and in the light of what has been stated above. The trial court may depute a commissioner to identify the respective properties of the parties with reference to the documents of title of respective deeds and Exts.A6, A13 and A14 documents. The parties will be at liberty to adduce further evidence, if so advised. The parties shall AS 603/97-E 15 appear before the trial court on 27.10.2011. The trial court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of parties before the said court. Forward a copy of this judgment to the trial court. P.Bhavadasan, Judge sta AS 603/97-E 16