IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 SA.No. 540 of 1998(C) --------------------- AS.123/1992 of I ADDL. DISTRICT COURT, KOLLAM OS.46/1984 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/1ST RESPONDENT/1ST PLAINTIFF: 1. VELUTHA KUNJU JANAKY, VALAZHIKATHU VEEDU, MUNDAKKAL, AMRUTHUKULANGARA CHERRY, ERAVIPURAM. 2. JANAKY JALAJAKUMARI, VALAZHIKATHU VEEDU, MUNDAKKAL, AMRUTHUKULANGARA CHERRY, ERAVIPURAM VILLAGE. (17TH RESPONDENT) (R17 IS TRANSPOSED OF AS 2ND APPELLANT AS PER ORDER DATED 8.10.2002 IN CMP 1917/2002) BY ADV. SRI.K.SUBASH CHANDRA BOSE SRI.V.PREMCHAND RESPONDENTS/APPELLANT - RESPSONDENTS 2 TO 10, DEFENDANT, 2ND PLAINTIFF: 1. BHARGAVI RADHA, THEKKANEZHIKATHU VEEDU, THEKKAEKATHU VILA, THEKKEMURI, EAST KALLADA VILLAGE, KOLLAM. 2. DAYANANDAN JAYAMOHANAN OF DO. DO. 3. RADHA JAYAPRABHA OF DO. DO. 4. DAYANANDAN JAYACHANDRAN, OF DO. 5. RADHA JAYAKUMARI OF DO.DO. 6. DAYANANDAN JAYAPRAKASH OF DO. DO.DO 7. DAYANANDAN JAYAKUMAR OF DO.DO 8. KUNJUPILLAI DAYANANDAN DO.DO S.A. 540/1998 2 9. JANAKY SAROJINI OF DO.DO 10. SARONJINII USHA OF DO. DO.DO 11. SAROJINI ISHA OF DO. DO.DO 12. SAROJINI GEETHA OF DO. DO.DO 13. RAGHAVAN SASIMOHAN OF DO. DO.DO 14. SAROJINI LATHA OF DO. DO.DO 15. USHA MINI OF DO. DO.DO 16. MANU, S/O. USHA, DO. DO. ADV. SRI.B.SURESH KUMAR FOR R1, R3 & R5 TO R8. SRI.S.SANTHOSH KUMAR FOR R2 & R4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = S.A. NO. 540 OF 1998 = = = = = = = = = = = == == = = = = DATED THIS, THE 21ST DAY OF DECEMBER, 2011. J U D G M E N T The plaintiffs in O.S. 46 of 1984 on the file of the Munsiff Court, Kollam, are the appellants. Originally the appeal was filed by the first plaintiff with the second plaintiff as respondent No. 17. Later, respondent No. 17 was transposed as the second appellant. The learned counsel for the appellant submitted that the first appellant is dead and the second appellant, the daughter, is the sole legal heir of the first appellant. The learned counsel for the contesting respondents submitted that he has filed a memo stating that the 8th respondent died and respondents 1 to 7 are the legal heirs of the 8th respondent. The appellants instituted the suit seeking a decree of declaration of the plaintiffs' title over the plaint A schedule property and fixation of boundary and for consequential prohibitory as well as mandatory injunction with a plea that plaint A schedule property was obtained to the plaintiffs as Item No.4 of Ext.A1 partition deed dated 18th Medom 1122(ME) and was in their possession and enjoyment. Plaint B schedule property was obtained as the share of the first defendant and her mother which now devolved upon defendants 1 to 8. Plaint C schedule A.S. 540/1998 2 property was set apart to the share of one Sarojini, which now devolved upon defendants 9 to 16. The plaintiffs contended that they were residing out of station and utilizing that opportunity the defendant had been attempting to demolish the boundary wall and to trespass into the plaint A schedule property over which the defendants had no manner of right. 2. The defendants 1 to 8 filed a joint written statement contending that though Ext.A1 partition deed was executed, the properties were not measured and separated and that A schedule property which was set apart to the share of the first plaintiff along with her brother Vasu was lying contiguous and they had never taken possession of the property in pursuance of Ext.A1 partition deed and that the contesting defendants had been in possession of plaint A schedule property eversince the partition deed in the year 1122 M.E. and thus he had perfected title by adverse possession and limitation and that the plaintiffs are not entitled to the declaration sought for or fixation of boundary or any consequential injunction. 3. After raising the issues, the parties were sent for trial. The first plaintiff and her brother who was the tenth party to Ext.A1 partition deed were examined as PWs 1 and 2. Exts. A1 to A3 and C1 to C6 were marked. The defendants did not adduce any evidence. Plaint A, B and C A.S. 540/1998 3 schedule properties were identified by the Advocate commissioner after surveying the property with the assistance of a Surveyor. The trial court, on appreciation of the evidence, arrived at a finding that the plaintiffs had established their right and title and are entitled to a declaration of title over plaint A schedule property. By Ext.C4 to C6 it was revealed that pending the suit and in violation of the order of interim injunction, the contesting respondents trespassed into a portion of the property. Consequently, after declaring the title of the plaintiffs, the defendants were directed by a mandatory injunction to remove the encroached portion. 4. Aggrieved by the above judgment and decree, defendants 1 to 8 preferred an appeal as A.S. 123 of 1992 before the District Court, Kollam. Though they prayed for a remand after setting aside the judgment and decree and allow them to adduce evidence, that was declined. The Appellate Court further found that A schedule property was set apart to the share of the first plaintiff and her brother Vasu and that Vasu had other legal heirs. It was found that he had a civil death and in that circumstance, the plaintiffs are not entitled to any relief as sought for in the plaint. Consequently, while allowing the appeal and setting aside the decree and judgment under challenge, the suit was dismissed. Assailing the above judgment and decree, this second appeal was preferred. The following are A.S. 540/1998 4 the substantial questions of law raised in the appeal memorandum. 1) Whether the lower Appellate Court is justified in setting aside the judgment and decree of the trial court? 2) Whether the lower Appellate Court is justified in dismissing suit on the basis of an undisputed law and facts? 2A) Had the plaintiff got absolute title over plaint A Schedule property by virtue of understanding in the family at the time of the execution of Ext.A1 document and the subsequent waiver and acquiescence by the members of the family? 2B) Had the plaintiffs have perfected their title by ousting the other members of the family by virtue of their open, continuous and hostile possession of the plaint A schedule property? 3) In the light of the facts and circumstances of this case, whether it is equitable to dismiss the suit which will directly justify the illegal acts of defendant 1 and 8 and the same is clear from Ext.C1 to C6. 4). Had the vague plea of adverse possession is an alternate plea in the written statement? 5. I have heard the learned counsel appearing on either side and perused the judgments of the court below, the documents and the evidence on record. 6. The execution of Ext.A1 partition deed is not disputed. But the contention as mentioned earlier is that the properties were not separated and A.S. 540/1998 5 the plaintiffs had not taken possession over plaint A schedule property. As against that contention of the defendants, there is the unimpeached testimony of PWs 1 and 2. PWs 1 and 2 had deposed that partition was effected and A schedule property was set apart to the share of the first plaintiff and her brother Vasu and subsequent to the partition, the first plaintiff had constructed a building and had been residing there. The fact that the properties were taken possession by the first plaintiff and construction was effected was supported by the evidence of PW.2. The commissioner, who inspected the property, had noticed that the building is under the lock and key of the plaintiffs. As against the evidence of PWs 1 and 2 and the report of the commissioner, there is no contra evidence. There is no reason to disbelieve PWs. 1 and 2. So, the trial court was correct in finding that Ext.A1 partition had taken effect and the 1st plaintiff got possession of A schedule property in pursuance of Ext.A1. 7. Alleging that in violation of the order of interim injunction, the contesting respondents trespassed into a portion of A schedule property and effected construction, the plaintiffs applied for deputing the Advocate commissioner to visit the property again. In pursuance to the order of the court, the commission inspected the properties on 31.10.1988 and reported that there is encroachment subsequent to the institution of the suit. A.S. 540/1998 6 Regarding that also, there is no contra evidence. Though respondents 1 to 8 contended that by adverse possession and limitation they had perfected title over the plaint A schedule property and that the right and title of the plaintiffs were lost by adverse possession and limitation, there is no supporting evidence. Therefore, that plea remains not proved. In the above circumstances, the judgment and decree of the trial court declaring the title of the plaintiffs and directing the contesting respondents to vacate the encroached portion as per Ext.C6 plan suffers no infirmity at all. It is in tune with the evidence on record. The Appellate Court interfered with the above judgment and decree on finding that some of the defendants ought to be the legal heirs of Vasu and in the above circumstances the appellants are not entitled to a decree for declaration of title and for consequential reliefs. However, the Appellate Court did not negative the title obtained to the plaintiffs over plaint A schedule property by virtue of Ext.A1. It is pertinent to note that none of the contesting respondents had not raised any claim over plaint A schedule property as legal heir of Vasu. In that circumstance, if the decree of the Appellate Court is allowed to sustain that would pave way for further encroachment and dispute over the properties resulting, some times, even law and order problems. The first plaintiff, who had obtained title and possession of plaint A schedule A.S. 540/1998 7 property by virtue of Ext.A1 is left with no remedy. In the event any of the contesting defendants are entitled to any share over the plaint A schedule property as legal heirs they could have instituted a suit for partition and to get their share in accordance with law. So long as they had not opted to file any suit for partition and to establish their due share over plaint A schedule properties, the Appellate Court should not have interfered with the judgment and decree. The Appellate Court has not at all shown any cause for not granting a decree of declaration of title to the first plaintiff over plaint A schedule property even if she has only half share over the properties. In this view of the matter, I find that the judgment and decree of the appellate court is contrary to the evidence and in denial of the undisputed title of the plaintiff's over the plaint A schedule properties. The Appellate Court should not have allowed the contesting defendants to encroach upon the plaint A schedule property and leading the parties to have law and order problem at the spot. In this view of the matter, the judgment and decree of the Appellate Court is contrary to the evidence on record and perverse in the sense that it is against the evidence on record and the law. I am afraid to confirm the decree and judgment of the appellate court. The appellate court even lost sight of the fact that the evidence of the appellants remains unimpeached and uncontroverted. The decree and A.S. 540/1998 8 judgment of the appellate court are liable to be set aside. I find that the plaintiffs are entitled to the decree as granted by the trial court and it has to be restored. In the result, the appeal is allowed. While setting aside the decree and judgment of the Appellate Court, the decree and judgment of the trial court are restored. The appellants are entitled to get their costs. It is made clear that in the event of any of the respondents are entitled to any share over the property and such right is surviving and enforceable, they are at liberty to move the appropriate court for getting their reliefs. However, taking note of the relationship between the parties, the execution court may try whether the dispute can be amicably settled between the parties. P.S. GOPINATHAN, (JUDGE) knc/- A.S. 540/1998 9 P.S. GOPINATHAN, J. = = = = = = = = = = = S.A. NO. 540 OF 1998 = = = = == == = = = = DATED : 21ST DECEMBER, 2011. J U D G M E N T