IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 RSA.NO. 615 OF 2003(F) ---------------------------------- A.S. NO.81 OF 1993, SUB COURT, ATTINGAL AGAINST O.S. NO.255 OF 1990, MUNSIFF'S COURT, ATTINGAL APPELLANT – IST APPELLANT - IST DEFENDANT -------------------------------------------------------------- REGHUNATHA KURUP, S/O. CHANDRA SEKHARA PILLAI, PARANKIMAVILA VEEDU FROM VARUVILAKATHU VEEDU, MURINGANAM WARD, PUNNAIKUNNATHU MURI, MELTHONNAKKAL VILLAGE. PRESENT ADDRESS: P.B. NO.355, ABUDABI, U.A.E., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER CHANDRA SEKHARA PILLAI, S/O.VELAYUDHAN PILLAI, PARANKIMAVILA VEEDU FROM VARUVILAKATHU VEEDU, MURINGANAM WARD, PUNNAIKUNNATHU MURI, MELTHONNAKKAL VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S) – RESPONDENT - 2ND APPELLANT PLAINTIFF & 2ND DEFENDANT: ---------------------------------------------------------------- 1. RAGHAVAN ASAI, S/O. KOCHU NARAYAN ASARI, SABU BHAAN, MARINGANAM WARD THONNAKKAL VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER HIS WIFE LEELA RAGHAVAN OF DO. DO. 2. CHANDRA SEKHARA PILLAI WRITTEN AS SEKHARA PILLAI, S/O.VELAYUDHAN PILLAI, PARANKIMAVILA VEEDU, MARINGANAM WARD, PUNNAYIKKUNNATHU MURI, MELTHONNAKKAL VILLAGE, (DIED) ADV. SRI.J.JAYAKUMAR FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 615 of 2003 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of October, 2009 J U D G M E N T ---------------------- The Second Appeal arises from judgment and decree of the court of learned Sub Judge, Attingal in A.S. No.81 of 1993 confirming judgment and decree for mandatory injunction granted by learned Munsiff, Attingal in O.S. No.255 of 1990 in favour of respondent No.1/plaintiff. 2. The following substantial questions of law are framed for a decision. (i) Without a measurement plan of plaint schedule property is the lower appellate court justified in holding that the Well lying on southern side of defendant property is the one included in Ext.A3 sale deed? (ii) Is the lower appellate court justified in rejecting the document produced before it when it clearly proves that the defendant has title over the well? (iii) Is the lower appellate court justified in dismissing I.A. No.7/2001 for amending the R.S.A. NO.615 of 2003 -: 2 :- written statement? 3. Respondent No.1/plaintiff sued appellant/defendant No.1 and respondent No.2/defendant No.2 (he died pending proceeding) for a decree for prohibitory injunction initially alleging that the construction made by the appellant in the property belonging to him on the west of suit property violated various provisions of the Kerala Building Rules. Respondent No.1 claimed that he has constructed a compound wall along the western boundary (within his property) of the suit property which belonged to him as per Exts.A2 and A3. According him the structure put up by the appellant violated the building rules and that structure had to be removed. Appellant and respondent No.2 filed written statement denying the allegation regarding violation of building rules and contended that they have obtained exemption from the Government under relevant rules. Advocate Commissioner inspected the suit property on 21.6.1990 and submitted report and a rough sketch. On 17.12.1991 respondent No.1 filed application to amend the plaint incorporating a plea that the Well situated in item No.2 of plaint schedule was enclosed by the appellant and respondent No.2 by constructing a wall around the said Well, that Well belonged to respondent No.1 and seeking a mandatory injunction to remove the wall constructed by the appellant and respondent No.2 around the R.S.A. NO.615 of 2003 -: 3 :- Well. Appellant and respondent No.2 filed additional written statement denying the allegation that they enclosed the said Well. Parties went into trial. Learned munsiff found that allegation regarding violation of building rules are not proved, held that the disputed Well belonged to respondent No.1 and it has been enclosed by the appellant and respondent No.2 and accordingly decreed the suit in part directing appellant and respondent No.2 to remove the wall around the Well. While the first appeal was pending at the instance of appellant and respondent No.2, they filed I.A. Nos.6 and 7 of 2001 for receiving additional evidence under Order XLI Rule 27 of the Code of Civil Procedure (for short, “the Code”) and to amend the additional written statement filed in answer to the amendment of the plaint by respondent No.1 to incorporate a contention that the Well belonged to the appellant. First appellate court dismissed those applications and confirmed the judgment and decree of the trial court against which this Second Appeal is preferred by appellant-defendant No.1 in the suit. 4. It is contended by learned counsel for appellant that the only reason for the trial court to find against the appellant as to title over the disputed Well is that appellant had not produced his document of title in the trial court. According to the learned counsel the relevant document was produced by the appellant along with R.S.A. NO.615 of 2003 -: 4 :- I.A.No.6 of 2001 which the first appellate court has dismissed without any valid reason. Learned counsel placed reliance on the decision in Vijayan v. Rajeswari (2002 (2) KLT Short Notes Page 1 Case No.1). It is alternatively contended that even if the appellant had not produced document proving his title, in a suit of this nature where a decree for mandatory injunction is claimed it was the responsibility of respondent No.1 to prove that he has title over the disputed Well. In this case apart from producing Exts.A2 and A3 there is no reliable evidence to show that the disputed Well formed part of property covered by Ext.A3 in that no attempt was made to measure the property with reference to Exts.A2 and A3 to show that the disputed Well came within the property belonging to respondent No.1 as per Exts.A2 and A3. Learned counsel contended that the disputed Well is not really the subject matter of the suit in that though in the body of the plaint by amendment it is stated that the Well belonged to respondent No.1, item No.2 of the plaint schedule is not amended to incorporate description regarding the Well as required under Order VII Rule 3 of the Code. Hence no decree could have been granted in respect of the Well. Learned counsel also submitted that in view of the circumstances stated in the affidavit in support of I.A. No.7 of 2001 the first appellate court ought to have allowed the additional R.S.A. NO.615 of 2003 -: 5 :- written statement to be amended for incorporating necessary plea. Per contra it is contended by learned counsel for respondent No.1 that there is no challenge regarding the title of respondent No.1 in respect of the disputed Well and as such it is not necessary to measure the property with regard to the title deeds. It is also contended that though in item No.2 of the plaint schedule there is no description regarding the Well a description sufficient to identify the Well has been given in the body of amended plaint which satisfied the requirement of Order VII Rule 3 of the Code. According to the learned counsel dismissal of I.A. Nos.6 and 7 of 2001 is justified. 5. Under Section 39 of the Specific Relief Act (for short, “the Act”), a mandatory injunction is granted when to prevent the breach of an obligation it is necessary to compel performance of certain acts which the court is capable of enforcing. 'Obligation' is defined in Sec.2(a) of the Act as including every duty enforceable by law. A duty enforceable by law can arise under Statute, contract, quasi contract or on principles of tort. In this case prayer for mandatory injunction as on the premises that the disputed Well belonged to respondent No.1. In other words title is set up over the disputed Well requiring the court to direct the appellant to remove the alleged construction enclosing the Well. It is seen from Ext.A3, which is a R.S.A. NO.615 of 2003 -: 6 :- document of title of respondent No.1 in respect of item No.2 of plaint schedule that it refers to a Well but in item No.2 of the plaint schedule there is no description of the Well. I do not forget that in the body of plaint by amendment it is stated that Well belonged to respondent No.1. Order VII Rule 3 of the Code required respondent No.1 to give in the plaint a description of the Well sufficient to identify it and in case such property can be identified by boundaries of survey number, to specify such boundaries and survey number. That has not been done. 6. The report of the Advocate Commissioner shows that he has not measured the property with reference to documents of title even relied on by respondent No.1. On the other hand, it would appear from the rough sketch prepared by the Commissioner that he referred to the ownership of the Well situated towards west of the property claimed by respondent No.1 merely based on the position of the compound wall on the west which even according to respondent No.1 was constructed by him. Even the rough sketch shows that a portion of the Well comes in the property of appellant. It is well to remember that it was after the Commissioner filed report and sketch that respondent No.1 thought of amending the plaint claiming title over the Well and seeking mandatory injunction. When suit is R.S.A. NO.615 of 2003 -: 7 :- based on title, it is necessary to prove title with reference to documents of title relied on by him and on proper measurement of the property. That is because title cannot be decided by surmises and conjectures. In this case respondent No.1 has not taken steps to prove his title based on title deeds relied on by him. 7. It is contended by learned counsel for appellant that going by the averments in the plaint there is no possibility of appellant or respondent No.1 enclosing the eastern portion of the disputed Well. Learned counsel contended from the averments in the plaint that according to respondent No.1 he had constructed compound wall on the western boundary of his property with granite foundation and burned bricks. Suit was filed on 16.5.1990 and Advocate Commissioner inspected the property on 21.6.1990. It is on 17.12.1991 that application for amendment of the plaint to incorporate a plea that appellant and respondent No.2 enclosed the eastern portion of the Well was made and that application was allowed. Learned counsel for appellant contended that in the way in which western compound wall is constructed there is no possibility of appellant or respondent No.2 encroaching into the property claimed by respondent No.1 and situated on the east of compound wall and enclosing the eastern portion of the disputed Well. According to the R.S.A. NO.615 of 2003 -: 8 :- learned counsel in the absence of sufficient evidence that it was appellant or respondent No.2 who had enclosed the eastern portion of the Well courts below should not have granted mandatory injunction. This argument is met by learned counsel for respondent No.1 relying on Ext.C1. However in the light of what I have stated above claim of respondent No.1 and the manner in which I propose to dispose of this appeal it is not necessary for me to enter into a finding as to whether it was the appellant and/or respondent No.1 who had enclosed the eastern portion of the disputed Well. 8. So far as dismissal of I.A. Nos.6 and 7 is concerned, it is seen that first appellate court stated that the applications could not be allowed at that stage and consequently applications are being dismissed. Order XLI Rule 27 of the Code permits the appellate court to receive additional evidence in the circumstances stated therein or if the appellant court finds a document relevant and necessary for a just disposal of the appeal. According to appellant, during the relevant time he was employed abroad and the case was being conducted by his aged father, respondent No.2 and in the circumstances he was not able to incorporate appropriate contention in the additional written statement and produce relevant documents in court. In view of the manner in which I propose of the dispose of this R.S.A. NO.615 of 2003 -: 9 :- appeal I consider it appropriate to set aside the orders on I.A. Nos.6 and 7 of 2001 and to remit those applications to the trial court for consideration. Accordingly, orders on I.A.Nos.6 and 7 of 2001 are set aside and those applications are remitted to the trial court. 9. In the light of what I have stated above, for the failure of respondent to prove the title claimed by him over the disputed Well and non-compliance of Order VII Rule 3 of the Code the judgment and decree under challenge cannot be sustained. However, I am inclined to give respondent No.1 an opportunity to prove the title claimed by him rather than driving the parties to a separate suit on title. I make it clear that it will be open to respondent No.1 to amend the plaint and plaint schedule if respondent No.1 is so advised and to take out a commission to identify the suit property with reference to the title deeds relied on by him and/or such other relevant documents as is required. I also make it clear that it will be open to the appellant to pursue I.A. Nos.6 and 7 of 2001 and seek amendment of the additional written statement and adduce further evidence. It is open to the appellant also based on his plea as already made or as may be permitted by the trial court to prove the title claimed by him over the disputed Well. I make it clear that I have not expressed either way concerning the merit of the contentions raised by the parties and that R.S.A. NO.615 of 2003 -: 10 :- learned Munsiff shall dispose of the case untrammelled by any observation made herein on the merits of the case. 10. Substantial questions of law framed are answered as above. Resultantly, Second Appeal is allowed by way of remand. Judgment and decree under challenge are set aside. Case is remitted to the trial court for fresh disposal. Learned Munsiff, Attingal is directed to expedite the trial and disposal of the suit. Interim order of injunction passed by the learned Munsiff in favour of respondent No.1 will remain in force until disposal of the suit. Parties shall appear in the trial court on 30.11.2009. Registry is directed to send back the records of the case to the trial court forthwith. Interlocutory Application Nos.439 of 2004 and 2246 of 2006 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.615 of 2003 -: 11 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO. 615 OF 2003 =================== J U D G M E N T 19TH OCTOBER, 2009