IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 SA.No. 430 of 2000(A) --------------------- AS.18/1992 of PRINCIPAL SUB COURT,ERNAKULAM OS.1605/1988 of II ADDL.M.C., ERNAKULAM .................... APPELLANT(S)/RESONDENT/DEFENDANT: ------------------------------------------------------------ BHARATHAN NAIR, S/O. PARAMESWARAN KARTHA, KANOOR VEEDU, KAKKANAD KARA, VAZHAKKALA VILLAGE. BY ADV. SRI.M.C.CHERIAN SMT.ASHA CHERIAN RESPONDENT(S)/APPELLANT/PLAINTIFF: -------------------------------------------------------- LALITHA KUNJAMMA, D/O. AMBUJAKSHI KUNJAMMA, PULIKKILLATH HOUSE, KAKKANAD KARA, VAZHAKKALA, (THRIKKAKARA SOUTH) VILLAGE. ADV. SRI.PAUL K.VARGHESE FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 430 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of July, 2011. JUDGMENT The defendant in O.S.1605 of 1988 before the Munsiff's Court, Ernakulam is the appellant. The defendant suffered a decree at the hands of the lower appellate court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for fixation of northern boundary of the plaint schedule property and consequential injunction. The plaintiff claimed to have obtained plaint A schedule property as per Ext.A1 dated 13.11.1967. Plaint B schedule belonged to the defendant, which is in Sy. No.157/8. It is averred in the plaint that to the immediate east of the plaint A schedule property there is the residential compound of the plaintiff and immediately to the east of plaint B schedule property there is the residential compound of the defendant. Plaint A and B are wet lands. S.A.430/2000. 2 The grievances voiced in the plaint are that the defendant attempted to destroy the southern boundary of residential property of the plaintiff and trespass into the property belonging to the sister of the plaintiff. It is averred that there are survey stones as well as fence on the northern boundary of the plaint schedule property separating it from plaint B schedule property. The grievance is that the defendant demolished the fence and attempted to trespass into A schedule property and hence the suit for fixation of northern boundary of plaint A schedule property and consequential reliefs. 3. The defendant resisted the suit. It was contended that there was a granite stone foundation separating the plaintiff's property from that of the defendant. It was conceded in the written statement that the wet lands belonging to the plaintiff and defendant are on the western side of their respective residential compound. According to the defendant, the wet land namely A and B schedule properties were separated by a bund on the S.A.430/2000. 3 northern side of the plaintiff's property. There is a puramboke canal. The bund is used by the public as a pathway. The details of the boundary are given in the written statement which are not very relevant for the present purpose. It is contended that the bund was in existence for over 40 years and that the plaintiff and defendant are using it as a pathway. The defendant also claimed that the disputed bund is the only means of access to the outside world and he is claiming it as a matter of right. He claimed prescriptive right of easement to use the bund on the northern side. On the basis of the above contentions the defendant prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant examined D.Ws. 1 and 2. Exts.C1 and C1(a) are the commission report and plan. On an evaluation of the evidence, the trial court has found that the plaintiff has failed to establish his case and S.A.430/2000. 4 dismissed the suit. The plaintiff carried the matter in appeal as A.S.18 of 1992. Quite strangely enough the lower appellate court passed a preliminary decree, which reads as follows: “1) The boundary between plaint A and B schedule properties will be fixed. 2) The respondent is permanently prohibited from trespassing into the plaint A schedule property after fixing its boundary and committing any waste therein.” 5. Notice is seen issued on the following questions of law: “A. In the lower appellate court justified in reversing a decree and judgment rendered by trial court ( rendered by meticulously going into the evidence in the case), without adverting to and considering the evidence at all? B. Can an appeal be allowed against the respondent, on the basis of a finding of the trial court, against the respondent, against which he has not filed appeal? C. Is there any scope for passing a preliminary decree for fixation of boundary at the S.A.430/2000. 5 appellate stage, in a case where trial court has found on the pleadings and evidence including commission report and plan that there is already a clear and fixed boundary? D. Can the rights of a party preferred by easement by prescription, and adverse possession, be taken away, by means of a simple suit for fixation of boundary? E. Does the mere fact that the lower court did not raise an issue regarding the claim of the defendant for adverse possession, and easement by prescription, (but discussed it in detail, for deciding the case by finding that there is a clear and definite boundary for the plaintiff's property), take away the right vested on the defendant on the basis of such claims? F. Is the lower appellate court justified in ignoring and denying the claims of the defendant on the basis of easement by prescription and adverse possession, on the reasoning that the trial court has not raised specific issue regarding it? G. Can settled boundary fixed and acted upon for over 40 years, be unsettled and re-opened by merely filing a suit for fixation of boundary? S.A.430/2000. 6 H. Can a preliminary decree for permanent injunction be passed by Appellate court without even deciding as to which is the boundary, by it?” 6. Learned counsel appearing for the appellant pointed out that the grievance of the appellant is that he has no objection in fixing the northern boundary of plaint A schedule property. But the decree passed by the lower appellate court regarding prohibitory injunction is unjustified. It is pointed out that after fixing the northern boundary it had to be considered whether the bund falls within the property of the defendant and if it falls within the boundary of defendant, necessarily the claim of prescriptive right raised by the defendant had to be considered. To that extent learned counsel points out that the decree of the lower appellate court is illegal. According to learned counsel for the appellant, the decree of the lower appellate court as such may not be accepted. However in the plaint the plea was for fixation of northern boundary of plaint schedule property. It is averred that a proper plan and report has to S.A.430/2000. 7 be obtained for fixation of northern boundary and therefore the court may remand the matter for fresh consideration in accordance with law. 7. The prayer in the plaint is for fixation of northern boundary of plaint A schedule property. The rough sketch produced by the commissioner shows that the dispute centers round the bund on the northern side of plaint A schedule property. The issue as to whether the bund falls within the property of the defendant can be ascertained only after measurement. If the bund falls outside the property of the defendant, prescriptive right etc does not arise for consideration. If it falls within the property of the boundary of A schedule property, necessarily the question of prescriptive right claimed by the defendant will have to be considered. The lower appellate court was not justified in granting an injunction and directing the trial court to fix the northern boundary. The decree of the lower appellate court is clearly unsupportable in law. S.A.430/2000. 8 8. This appeal is allowed, and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above after obtaining a proper plan and report. The parties shall be at liberty to adduce further evidence, if they so choose. The trial court shall consider all issues that arises for consideration in the suit including the claim of prescriptive right of easement and the claim of adverse possession also as contended in the written statement untramelled by the observations made by the trial court or the lower appellate court. The parties shall appear before the trial court on 10.8.2011. The trial court shall make every endeavour to dispose of the suit as expeditiously as possible and at any rate within a period of nine months from the date of appearance of the parties. P. BHAVADASAN, sb. JUDGE The word “defendant” occurring in the 3rd and 4th sentences in paragraph 7 (page 7) of the judgment dated S.A.430/2000. 9 12.7.2011 in S.A. No.430/2000 is corrected and substituted as “plaintiff”, vide order dated 9.8.2011 in I.A. No.1974/2011 in S.A. No.430/2000. Sd/- Registrar (Judicial)