IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 SA.No. 807 of 1996() -------------------- (AS.1077/94 OF SUB COURT, NEYYATTINKARA O.S.157/89 OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA) APPELLANTS/ APPELLANTS/DEFENDANTS: ------------------------------------------------------------- 1. PULINKUDI SIVAKSHETRAM ALIAS SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADOM, PULINKUDI CHOWARA KOTTUKAL DESOM, KOTTUKAL PAKUTHY. * 2. V.SATHYASEELAN, S/O.LATE VELAYUDHAN K., 'SATHYASEENA', PULINKUDI, CHOWARA P.O., THE PRESENT PRESIDENT OF 1ST APPELLANT PULINKUDI SIVAKSHETHRAM ALIAS SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADOM (SRI.GOPALAN VENU WAS THE PRESIDENT OF THE 1ST DEFENDANT/1ST APPELLANT AT THE TIME OF FILING SUIT AND SRI.K.BHAHULEYAN WAS THE PRESIDENT OF THE 1ST DEFENDANT/1ST APPELLANT AT THE TIME OF FILIG APPEAL SUIT). * 3. P.S.SATHIKUMAR, S/O. B.SADASIVA PANICKER, S.N.HOUSE, PULINKUDI, MULLOOR POST, THE PRESENT SECRETARY OF 1ST APPELLANT PULINKUDI SIVAKESHETHRAM ALIAS SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADAM (SRI.VISWAMBARAN PANICKER SREENIVASAN WAS THE SECRETARY OF THE 1ST DEFENDANT/1ST APPELLANT AT THE TIME OF FILING SUIT AND SRI.G.MOHANAKUMAR WAS THE SECRETARY OF THE 1ST DEFENDANT/1ST APPELLANT AT THE TIME OF FILING APPEAL SUIT. SUBSTITUTING A2 & A3 IN IA 1253/06 ------------------------------------------------------ A2. V.K.SREENIVASAN, SREESHIBIJAM, PULINKUDI, VIZHINJAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. A3. M.SANTHOSH KUMAR, RESIDING AT JANU BHAVAN, KANJIRAKULAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. CAUSE TITLE OF MEMORANDUM OF S.A. IS AMENDED BY SUBSTITUTING THE ABOVE APPELLANTS IN THE PLACE OF APPELLANTS 2 AND 3 IN THE SECOND APPEAL AS PER ORDER DATED 4.7.06 IN IA. 1253/06 IN SA. SA.No. 807 of 1996() ----------------------------- AGAIN SUBSTITUTING A2 & A3 IN IA.1546/07 ---------------------------------------------------------------- A2. PUSHKARA PANICKER, AGED 69, S/O.PONNAN PANICKER, 'SURESH BHAVAN,', PULINKUDI, KOTTUKAL VILLAGE, MULLOOR P.O., NEYYATTINKARA, TRIVANDRUM, THE PRESENT PRESIDENT OF 1ST PETITIONER/1ST APPELLANT PULINKUDI SIVAKESHETHRAM @ SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADOM. (SRI.V.SATHASEELAN WAS THE PRESIDENT OF THE 1ST APPELLANT AS THE TIME OF FILING S.A.) A3. C.SURESH BABU 'C.B.BHAVAN, PULINKUDI CHOWARA P.O. VIA BALARAMAPURAM, TRIVANDRUM, THE PRESENT GENERAL SECRETARY OF 1ST APPELLANT, PULINKUDISIVAKESHETHRAM @ SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADOM. (SRI.P.S.SATHIKUMAR WAS THE SECRETARY OF THE 1ST APPELLANT AT THE TIME OF FILING S.A.) CAUSE TITLE OF MEMORANDUM OF S.A. IS AMENDED BY SUBSTITUTING THE ABOVE APPELLANTS IN THE PLACE OF THOSE APPELLANTS 2 AND 3 IN THE SECOND APPEAL AFTER DELETING THE NAME AND ADDRESS OF THE PRESENT APPELLANTS NO.2 AND 3 AS PER ORDER DATED 4.9.07 IN IA.1546/07 IN S.A. SUBSTITUTING A2 & A3 IN IA 1296/09 -------------------------------------------------------- A2. D.S.SIVARAJAN, AGED 53, S/O.DIVAKARAN, 'LAL HOUSE', PULINKUDI, CHOWARA P.O., TRIVANDRUM DISTRICT THE PRESET PRESIDENT OF PULINKUDI SIVAKSHETHRAM SREENARAYANA GURUSWAMY SMARAKA BHAJANAMADOM. A3. SHAIJU AGED 26, S/O.K.M.MOHANAN, PANANINNATHATTU PUTHE VEEDU, THEKKEKONAM, KOTTUKAL P.O., TRIVANDRUM, THE PRESENT SECRETARY OF DO. DO. CAUSE TITLE OF MEMORANDUM OF SA IS AMENDED BY SUBSTITUTING THE ABOVE APPELLANTS IN THE PLACE OF THOSE APPELLANTS 2 & 3 IN THE SECOND APPEAL AFTER DELETING THE NAME AND ADDRESS OF THE PRESENT APPELLANTS NO.2 AND NO.3 AS PER ORDERS DATED 30.6.09 IN IA.1296/09 IN SECOND APPEAL. BY ADVS. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.T.M.CHANDRAN SRI.V.A.SASIDHARAN SA.No. 807 of 1996() ----------------------------- RESPONDENT/RESPONDENT/PLAINTIFF: ---------------------------------------------------------- * UMMINI AMMUKUTTY, BHAKTHIVILASAM VEEDU, FROM KIZHAKKARUKU VEEDU, PUTHUVALATHOTTAM, CHOWARA, KOTTUKAL DESOM, KOTTUKAL PAKUTHY, HAVING ALSO THOTTATHUVILAKETHU VEEDU, KADAKULAM DESOM, KOTTUKAL PAKUTHY, HAVING ALSO POONKOTTUKONATHU VALIYA VEEDU, VENGANOOR DESOM, THIRUVANANTHAURAM PAKUTHY. (DIED. LRS IMPLEADED) ADDL.R2 TO R4 IMPLEADED ---------------------------------------- R2. P.B.GOPINATHAN, BHAKTHIVILASAM, PULIMKUDI, MULLOOR P.O., VIA VIZHINJAM, THIRUVANANTHAPURAM DIST. R3. A.SUSEELA DEVI OF DO. DO. R4. A.SYAMALA DEVI, VEDIVECHANKOVIL P.O. (VIA) BALARAMAPURAM, THIRUVANANTHAPURAM DISTRICT. LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL. R2 TO R4 AS PER ORDER DT. 7.12.04 ON IA. NO.2374/04 . BY ADV. SRI.G.S.REGHUNATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.1.2011, ALONG WITH CRP.1956/2000 & CRP.1957/2000, THE COURT ON 16.2.2011 DELIVERED THE FOLLOWING: VK P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 807 of 1996 & C.R.P. Nos. 1956 & 1957 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2011. JUDGMENT The defendants in O.S.157 of 1989, who suffered concurrent decrees are the appellants. In execution of the decree so obtained by the plaintiff, the defendants filed two applications, one for deputing a commissioner to verify whether the execution had been carried out in terms of the decree and another against the order closing the execution proceedings. C.R.Ps arise from the respective orders against them. The fate of the C.R.Ps will therefore depend upon the fate of the Second Appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff and his mother Madhevi Ummini obtained 23 cents of property as per Ext.A1 dated 9th Medam 1113. By Ext.A2 dated 13th Thulam, 1114 they sold 15 ½ cents to the defendants. The balance 7 ½ cents was S.A.807/96 & C.R.Ps1956 & 1957/2000. . 2 retained by them. The total extent of 23 cents is shown as plaint A schedule and 15 ½ cents sold to the defendants is shown as plaint B schedule. Plaint C schedule is the balance 7 ½ cents. Plaint B schedule property lies on the eastern side of plaint C schedule property. Plaintiff wanted to put up boundary on the eastern side of C schedule property. The defendants were not amenable to such a course and they objected to the same and that has resulted in the filing of the suit. 3. The defendants resisted the suit. They disputed that the plaint C schedule was included in the gift deed relied on by the plaintiff namely Ext.A1. The property now owned by the plaintiff out of the property obtained under the gift deed lies within well demarcated boundaries of the property of the temple. The attempt of the plaintiff is to grab a portion of the temple property under the guise of laying a boundary on the eastern side of plaint C schedule S.A.807/96 & C.R.Ps1956 & 1957/2000. . 3 property. According to them, there is no bonafides in the suit and it is only to be dismissed. 4. On the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A3(c) from the side of the plaintiff. The defendants had examined D.W.1 and marked Exts. B1 and B2 series. Exts.C1, C1(a), C2 and C2(a) are commission report, sketch and plans. On an evaluation of the evidence, the trial court came to the conclusion that the plaint C schedule property belongs to the plaintiff and he was allowed to put up a boundary along BE line in Ext.C2 plan. The plaintiff was also given a decree to realise half the expenses for putting up such a boundary. Ext.C2(a) plan was made part of the decree. 5. The defendants carried the matter in appeal as A.S.1077 of 1994 before the Sub Court, Neyyattinkara. The lower appellate court on an independent evaluation of the S.A.807/96 & C.R.Ps1956 & 1957/2000. . 4 evidence concurred with the finding of the trial court and dismissed the appeal. The lower appellate court also dismissed I.A. 1356 of 1995 seeking to amend the written statement and to raise additional pleadings. 6. Aggrieved by the judgments and decrees of the courts below, the defendants have preferred the Second Appeal. Notice is seen issued on the following questions of law: “a) Whether it is proper for the first appellate court to discard prayer for an amendment when specific pleas of limitation and adverse possession are raised. b) Whether the first appellate court was right in holding that the principle of estoppel will apply against defendants 2 and 3 particularly when no such plea is raised. c) Is the plaintiff liable to prove his case with respect to the measurements of the plaint schedule property. d) Whether the court can rely on the evidence of the Advocate Commissioner and the report and plan submitted by him. S.A.807/96 & C.R.Ps1956 & 1957/2000. . 5 e) Whether the court is bound to allow the amendment application filed by the defendants at the appellate stage and give a chance to contest the suit especially when no immediate prejudice would be caused to the plaintiff? f) Whether the court is bound to consider the documents produced by the parties? g) Whether the court is justified in granting a decree for realisation of the half of the expense from the defendants for the construction of a wall to protect the plaintiff's property. h) Is the court entitled to issue a direction to the Advocate Commissioner to measure the property with re-survey plan and records so as to identify the plaint schedule property.” 7. Learned counsel appearing for the appellants raised three points for consideration. They are, i) the plaintiff has not proved his title to plaint C schedule property, ii) the commissioner has not identified the property with respect to the title deeds and iii) the commission report, on the basis of which relief was granted S.A.807/96 & C.R.Ps1956 & 1957/2000. . 6 to the plaintiff, is incorrect. Dilating on the above points, it was contended that the plaintiff has not succeeded in establishing that plaint C schedule forms part of the property obtained by her under Ext.A1. Both the courts below have not considered this aspect and that has resulted in miscarriage of justice. It was then contended that from the report and plan submitted, it can be seen that the identification of the property has not been done with respect to the respective title deeds. The commissioner has identified the property as shown by the plaintiff and that is unhelpful in resolving the dispute involved in this case. It was then contended that on a perusal of the resurvey sketch, it can be seen that the commission report on the very face of it is incorrect. Referring to Ext.C2(a), learned counsel pointed out that even going by the averments in the plaint, plaint C schedule property is well bounded on three sides, namely, northern, western and southern sides by well laid boundaries, and if that be so, the plot now identified by S.A.807/96 & C.R.Ps1956 & 1957/2000. . 7 the commissioner cannot be the plot over which the claim is made by the plaintiff. According to learned counsel, there has been an erroneous appreciation of the evidence resulting in totally incorrect findings and that calls for interference in second appeal exercising powers under Section 100 of the Code of Civil Procedure. 8. In reply, learned counsel for the respondent pointed out that none of the above contentions have been urged before the trial court and the above contentions do not therefore arise for consideration at all. There is no dispute regarding the title deed relied on by the plaintiff and there was also no plea that the commissioner has failed to identify the property with respect to the respective title deeds. It was not contended either before the trial court or before the lower appellate court that on a comparison of the commission report with the resurvey sketch, it can be seen that the commission report is incorrect. The defendants have filed an application for producing resurvey plan S.A.807/96 & C.R.Ps1956 & 1957/2000. . 8 seeking aid of Order 41 Rule 27 of the Code of Civil Procedure only at the second appellate stage. Learned counsel went on to point out that there are no grounds made out to receive the documents in evidence since the reasons given do not fall within the ambit of the said provision. Learned counsel also took objection to the petition filed by the appellants seeking to amend the written statement incorporating the plea regarding the incorrectness of the report. Learned counsel then contended that the findings of both the courts below are based on evidence on record and are questions of fact. There is no contention on behalf of the appellants either before the courts below or in the memorandum of appeal that the courts below have misdirected themselves on facts or had not appreciated the materials on record in the proper perspective or that the findings are perverse. Relying on the decision reported in Narayanan Rajendran v. Lekshmy Sarojini ((2009) 5 SCC 264) it was contended that no interference is called for S.A.807/96 & C.R.Ps1956 & 1957/2000. . 9 with the judgments and decrees of the courts below. Learned counsel also emphasised that none of the defendants have gone into the box to depose their case and in such a situation, it is only proper that an adverse inference be drawn against them. For the said proposition, learned counsel relied on the decision reported in Adivekka v. Hanamavva Kom Venkatesh (AIR 2007 SC 2025). It was also pointed out by the learned counsel for the respondent that there is no bonafides in the challenge to title because the defendants have taken assignment from the plaintiffs out of the property obtained by them under Ext.A1 and the suit property is the balance portion retained by the plaintiffs after assigning B schedule property to the defendants. It is pointed out that the defendants are estopped from contending that the plaintiff has no title to plaint C schedule property. In support of his contention learned counsel relied on the decision reported in B.L. Sreedhar v. K.M. Munireddy ((2003) 2 SCC 355). S.A.807/96 & C.R.Ps1956 & 1957/2000. . 10 9. It must at once be noticed that both the courts below have found in favour of the plaintiff. The courts below have found that the Commission plan, namely Ext.C2(a) is acceptable and C schedule as identified by the commissioner in Ext.C2(a) belongs to the plaintiff. 10. As rightly pointed out by the learned counsel for the respondent, the defendants cannot be heard to say that the plaintiff has no title to the suit property. Admittedly, out of the 23 cents in Sy. No.481/1, which is shown as A schedule, 15 ½ cents was sold to the defendants, which is shown as B schedule. The balance 7 ½ cents, which has been retained by the vendees under Ext.A2 is shown as plaint C schedule property. Having obtained assignment of a portion of the property obtained by the plaintiff under Ext.A1, as rightly pointed out by the learned counsel for the respondents, the defendants are estopped from contending that the plaintiffs have no right over plaint C schedule property. In the decision reported in S.A.807/96 & C.R.Ps1956 & 1957/2000. . 11 B.L.Sreedhar v. K.M.Munireddy ((2003) 2 SCC 355) it was held as follows: “”In our old books,” said Mr.Smith in his notes to Duchess of Kingston case, “truth appears to have been frequently shut out by the intervention of an estoppel, where reason and good policy required that it should be admitted........ However, it is in no wise unjust or unreasonable, but, on the contrary, in the highest degree reasonable and just, that some solemn mode of declaration should be provided by law, for the purpose of enabling men to bind themselves to the good faith and truth of representations on which other persons are to act.” “An estoppel is not a cause of action - it is a rule of evidence which precludes a person from denying the truth of some statement previously made by himself.” Per lindley, L.J. in Low v. Bouverie, Ch at p.101. In the same case. Ch at p.105. Bowen, L.J. added””Estoppel is only a rule of evidence, you cannot found an action upon estoppel.” Estoppel though a branch of the law of evidence is also capable of being viewed a substantive rule of law insofar as it helps to create or defeat rights, S.A.807/96 & C.R.Ps1956 & 1957/2000. . 12 which would not exist or be take away but for the doctrine. Estoppel is a complex legal notion, involving a combination of several essential elements - statement to be acted upon, action on the faith of it, resulting in detriment to the actor. Estoppel is often described as a rule of evidence, as indeed it may be so described. But the whole concept is more correctly viewed as a substantive rule of law... Estoppel is different from contract both in its nature and consequences. But the relationship between the parties must also be such that the imputed truth of the statement is a necessary step in the constitution of the cause of action. But the whole case of estoppel fails if the statement is not sufficiently clear and unqualified. (Per Lord Wright in Canada & domination Sugar Co.Ltd v. Canadian National (West Indies) Steamships Ltd. WWW at p.764) “The essential factors giving rise to an estoppel are , I think- S.A.807/96 & C.R.Ps1956 & 1957/2000. . 13 (a) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation was made. (b) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation was made. © Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but, where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted.” (Per Lord Tomin, Greenwood v. Martins Bank, all ER p.321 C-E) See also Thompson v. Palmer, Grundt v. Great Boulder and Central Newbury Car Auctions v. Unity finance. “ 'Estoppel', commeth of a French word 'estoupe', from whence the English word stopped, and it is called an estoppel, or conclusion, because a man's owne act or acceptance stoppeth or S.A.807/96 & C.R.Ps1956 & 1957/2000. . 14 closeth up his mouth to allege or lead the truth; and Littleton's case proveth this description” where it is said estoppel is of three kids i.e. matter (I) of record, (2) in writing, i.e. semble, by deed, (3) in Paiis. To the same effect is the definition in Termes de la Ley. (See Stroud's Judicial Dictionary, 4th Edn., p.943) “An estoppel,” says Lord Coke, “is where a man is concluded by his own act or acceptance to say the truth”. Mr. Smith, in his notes to Duchess of Kingston case characterizes this definition as a little startling but it nevertheless gives a good idea of what it is, by no means easy to include within the limits of a definition. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority. Estoppel, then, may itself be the foundation of a right as against the person estopped, and S.A.807/96 & C.R.Ps1956 & 1957/2000. . 15 indeed, if it ere not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved, estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddi v. Depuru Kamalamma where Vishwanatha Sastri, J. observed: “Estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law insofar as it helps to create or defeat rights which would not exist and be taken away but for that doctrine.....” Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or S.A.807/96 & C.R.Ps1956 & 1957/2000. . 16 defended as against the person precluded from denying it.” Therefore the first contention has necessarily to fail. 11. But the second and third contentions need to be noticed. The specific contention taken is that going by the averments in the plaint, the case of the plaintiff that plaint C schedule property is well bounded on all its three sides by well laid boundaries on north, west and southern sides. Even though there is a structure on the eastern side of plaint C schedule property, that is claimed to be a retaining wall by the plaintiff and according to the plaintiff the eastern boundary of plaint C schedule falls further east to the said retaining wall. 12. Learned counsel appearing for the appellant pointed out that even though the plaintiff would assert that plaint C schedule is well bounded on all three sides, the appellate court would treat them as retaining walls, a case which according to learned counsel the plaintiff did not have. S.A.807/96 & C.R.Ps1956 & 1957/2000. . 17 13. The mere fact that the appellate court has referred to the three boundary walls on the north, west and southern sides as retaining wall may not be of much consequence and significance. 14. As already noticed, Ext.C1 is the sketch prepared by the commissioner initially and Ext.C2(a) is the plan produced by the commissioner. Ext.C2(a) is said to be the survey plan. But the commissioner in his deposition as D.W.1 has stated that in order to identify plaint C schedule property, one has to refer to both Exts.C1(a) and C2(a). 15. Learned counsel appearing for the appellants drew the attention of this court to the fact that there is no difference between Ext.C1(a) sketch and C2(a) plan. The only difference is that in Ext.C2(a) plan the internal measurements are also seen given. Learned counsel pointed out that if as contended by the plaintiff going by Ext.C2(a) if CBDE is plaint C schedule, it is the same as AHCB in Ext. C1(a) plan, then of course the claim in the S.A.807/96 & C.R.Ps1956 & 1957/2000. . 18 plaint cannot be true. Even going by the plaint averments, plaint C schedule property has well laid boundaries on northern, western and southern sides, and a retaining wall on the eastern side. If the property now shown as C schedule in the commission report is taken, that belies the above averment. It is also pointed out by the learned counsel that if one compares the commission sketch and plan with the resurvey plan produced by the appellant at the second appellate stage, it can be seen that the property shown as belonging to the plaintiff and the defendants take in puramboke land also. This is a case which even the plaintiffs do not have. It is therefore contended that there was no proper identification of the property by the Commissioner. 16. It has to be said that there is considerable force in the argument. But the question is how far this court will be justified in going into the issue at the second appellate stage. S.A.807/96 & C.R.Ps1956 & 1957/2000. . 19 17. The commissioner has identified plaint A schedule in Ext.C2(a) plan as ACDEF. B schedule has been identified as ABEF and C schedule as BCDE. In Ext.C1(a) plan the commissioner has shown PHQLMNO, which according to the defendants is the temple property. The commission report clearly shows that the properties have been identified with respect to the measurements shown in the respective documents. It will be useful to refer to Ext.C2 commissioner's report. It refers to Ext.C2(a) plan prepared with the aid of the Taluk Surveyor. Ext.C2 report says that as per the directions given by