IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 RSA.No. 820 of 2003(E) ---------------------- AS.38/2000 of DISTRICT COURT, THRISSUR OS.416/1998 of II ADDL.MUNSIFF COURT, THRISSUR .................... APPELLANT/APPELLANT/DEFENDANT(S): -------------------- LATHIKA,AGED 47, W/O.SIVARAMAKAIMAL KUTTUMUKU DESOM, VILVATTAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- REMADEVI,AGED 47, D/O.OTHENATH AMMINI AMMA, KUTTUMUKU DESOM, VILVATTAM VILLAGE, THRISSUR TALUK. ADV. SRI.K.S.BABU [CAVEATOR] SMT.N.SUDHA THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON 28/10/2010 DELIVERED THE FOLLOWING: R.S.A.NO.820/2003 ORDER IN I.A.NO.827/2003 IN R.S.A.NO.820/2003 DISMISSED. 28.10.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.820 OF 2003 (E) ----------------------------------- Dated this the 28th day of October, 2010 J U D G M E N T The defendant in O.S.No.416 of 1998 on the file of the IInd Additional Munsiff Court, Thrissur is the appellant. The above suit was one for declaration and injunction, both prohibitory and mandatory, filed by the respondent/plaintiff. The trial court decreed the suit, which was confirmed in appeal by the lower appellate court, negativing the challenges raised by the defendant/appellant. Concurrent decision rendered by the two courts below is challenged in the appeal. 2. The dispute between the parties is over 'A' schedule property having an extent of six cents, over which, according to the plaintiff, she is having title and exclusive possession and it is provided as a way for ingress and egress to her 'B' schedule property comprising her residential building situated to the R.S.A.NO.820/2003 2 north, and to 'C' schedule property assigned by her to her daughter, situated to the west of 'A' schedule. 'A' schedule property belonged to the uncle of the plaintiff, namely, Govinda Marar, who later assigned it to his sister, Nanikutty Amma, and subsequently, that property devolved upon one Bageerathi Amma and plaintiff, and the former executed a release deed of relinquishing her right in favour of the plaintiff, was the case of the plaintiff to assert her right, title and possession over the plaint 'A' schedule property. The defendant, having her property to the west of 'A' schedule, has no right over the same, but, in order to set up a right over the same, she had put up a gate in the eastern compound wall of her property to have access to 'A' schedule through that gate. Such a gate was unauthorisedly put up by the defendant to have an access to her property from 'A' schedule for the purpose of facilitating the division of her property into plots and to dispose them by way of sale. Plaintiff, on the above allegations, sought for a decree of declaration of her title over 'A' schedule and for injunction, both prohibitory and mandatory, against the defendant. Prohibitory injunction R.S.A.NO.820/2003 3 was applied for to restrain the defendant from trespassing and interfering with the possession and enjoyment of the plaintiff over 'A' schedule and mandatory injunction to direct her to remove the gate and close down such entrance. 3. 'A' schedule is a public way and neither the plaintiff nor her predecessors have any exclusive right over that property and there were disputes over 'A' schedule between the plaintiff and the legal heirs of Govinda Marar, and without all of them in the party array, the suit was bad for non-joinder of necessary parties, was the case of the defendant. In the prior title deeds of the property of the defendant, its eastern boundary is shown as a way and that is the present 'A' schedule, over which she too has valid right to have enjoyment, was the case of the defendant to assert that she is fully empowered to put up a gate in the eastern compound wall of her property for access and use of 'A' schedule. 4. The materials placed before the court consisted of R.S.A.NO.820/2003 4 PWs.1 to 4, Exts.A1 to A5 for the plaintiff, DW1 and Exts.B1 to B4 for the defendant, Exts.C1 and C1(a), a report and sketch prepared by an advocate commissioner after conducting the local inspection over the suit properties, and some third party exhibits, Exts.X1 to X2 series. On such materials with reference to the pleadings and submissions made by the counsel on both sides, the trial court found that the plaintiff has established her claims for the reliefs raised, and accordingly, a decree was granted in her favour as applied for. Her title over 'A' schedule was declared and the defendant was restrained by a prohibitory injunction from trespassing upon 'A' schedule property and from using that property as a way and by a mandatory injunction to remove the gate and close the entrance to 'A' schedule from the eastern boundary wall of her property. Feeling aggrieved, the defendant preferred an appeal before the lower appellate court impeaching the correctness of the decree passed in favour of the plaintiff. The lower appellate court, after re-appreciating the materials tendered in the case, confirmed the decree passed by the trial court and dismissed the appeal. Hence, this second R.S.A.NO.820/2003 5 appeal. 5. The following substantial question of law has been raised in the appeal, on which, notice was issued to the respondent/plaintiff: Whether the courts below were right in granting a decree declaring the title of the plaintiff with respect to 'A' schedule property without being satisfied about the extent covered by the title deed of the plaintiff ? Both the courts below have not correctly appreciated the substantial contentions raised by the appellant/defendant to resist the suit claim and the declaration granted in favour of the plaintiff over 'A' schedule, where she had failed to establish her exclusive title over the same, is liable to be interfered with and reversed, is the submission of the learned counsel for the appellant. At best, the plaintiff is only one among the co-owners having right over 'A' schedule property and when she had filed the suit setting up exclusive title over the same, not recognizing R.S.A.NO.820/2003 6 the right of and on behalf of other co-owners, the decree of declaration over 'A' schedule was not available to her, and both the courts, without appreciating that circumstance, granted a decree in her favour, which is per se wrong and unsustainable under law, is the further submission of the counsel. While putting up the eastern compound wall, the defendant had left some portions from her property to have more width for the pathway, which is shown as a demarcating boundary in the prior title deeds of her property and, thus, the 'A' schedule is having the present width, is the submission of the learned counsel to contend that the rough sketch prepared by the advocate commissioner without properly measuring and identifying the properties with the help of a qualified surveyor and with reference to the title deeds of the parties can never be the basis to pass a decree declaring the title of the plaintiff over 'A' schedule, and as such, the declaration so granted in favour of the plaintiff as well as the decree of injunction passed against the defendant is liable to be set aside. On the other hand, the learned counsel for the respondent/plaintiff pointing out that the R.S.A.NO.820/2003 7 defendant had resisted the suit claim contending that 'A' schedule is a public way and, thus, claiming right over the same as a member of the public and not on the basis of any right over 'A' schedule as an owner flowing from the proprietary title of her property situated on its western side, is incompetent to challenge the title of the plaintiff over 'A' schedule without proving and establishing that there was a dedication of 'A' schedule to the public at some point of time. Not only that there was no material to show of any such dedication the materials tendered in the case would indicate that even for taking electric connection to the property of the defendant from 'A' schedule, she had obtained the consent from the title holder, the plaintiff, as proved by X1 and X2 series, according to the counsel. When the defendant had obtained such consent for drawing the electric line from the plaintiff conceding her right over 'A' schedule property, on the basis of the documentary materials produced in the case and the identification of 'A' schedule property made by the advocate commissioner, both the courts are fully justified in forming the conclusion that the plaintiff is entitled to the R.S.A.NO.820/2003 8 declaration of title and injunction applied for against the defendant, and the concurrent finding entered to grant the decree thereof does not suffer from any infirmity, is the submission of the counsel. It is further submitted that the appeal does not involve any substantial question of law and the challenge now raised pertains only to findings made over disputed facts raising no question of law which cannot be entertained in the second appeal. 6. What the plaintiff has produced to claim title over 'A' schedule is a copy of the release deed and also some photocopies of a pattayam and tax receipts. Though she had set up a case that 'A' schedule belonged to her uncle Govinda Marar, and by subsequent devolution it came into her hands and she is the full owner of 'A' schedule, no basic document to substantiate that claim was tendered in evidence. The trial court did not consider the absence of production of the basic document evidencing title of the plaintiff over 'A' schedule. The appellate court brushed aside the challenge thereto raised by the defendant holding that R.S.A.NO.820/2003 9 there was no specific denial of the title of the plaintiff in her written statement. What is not specifically denied shall be deemed to have been admitted, the principle covered by Order VIII Rule 5 of the Code of Civil Procedure was given emphasis by the lower appellate court to repel the challenge of the defendant against the title canvassed by the plaintiff. So far as the claim for a decree of declaration of title over an immovable property, it has to be noted that the weakness of the defendant or even her failure to resist such claim cannot be given unmerited consideration, as such a decree in favour of the claimant can be passed only where it is so established by the materials tendered. The documents produced by the plaintiff to sustain her claim for declaration of title over 'A' schedule are hardly sufficient to grant a decree thereof. A1 is a photocopy of the release deed executed by one Bageerathi Amma in favour of the plaintiff. The recitals in the deed are to the effect that by virtue of a patta issued by the divan peshkar, bearing number 9/51 of 1098, the property described, an extent of six cents, which is the plaint 'A' schedule, was obtained by the predecessor of the parties, R.S.A.NO.820/2003 10 Othenakali Ekakyamma and all her children, namely, Govinda Marar, Appunni Marar, Nanikutty Amma and Ammukutty Amma, all of whom are no more, and revenue charges had been paid in respect of the property for the year 1986-87, and that, the possession of the property continued with the plaintiff, and as such, the executant, a spinster, who resided with the plaintiff, is releasing her right to the plaintiff. Needless to point out, a release deed has no value whatsoever in determining the title to an immovable property, which has to be established by document evidencing pre-existing ownership. Apart from A1, the photocopy of the release deed, the other documents produced by the plaintiff are copy of pattayam, A2, issued in favour of Othenakali Ekakyamma, that too, in respect of properties of different survey numbers other than that of plaint 'A' schedule, a copy of a tax receipt purported to have been remitted by Othenaekaki Govinda Marar (A3), copy of tax receipt remitted in respect of 'A' schedule by the plaintiff in 1998 (A4), the year in which the present suit was instituted, and a certified copy of the partition deed executed by one Balakrishnan Nair, his wife and R.S.A.NO.820/2003 11 their children (A5). The above copy of the partition deed (A5), as seen from the evidence of the plaintiff as PW1, relates to the division effected by the family having property on the eastern side of plaint 'A' schedule. The above documents in no way assist the plaintiff to claim title over 'A' schedule property. Both the courts below have failed to examine the documents produced by the plaintiff as to whether they are sufficient enough to declare her title over the plaint 'A' schedule. On the basis of a release deed and tax receipts, evidencing payment of revenue charge over the property by the plaintiff, even assuming that a patta had been issued in favour of the ancestor of the plaintiff, no court can declare her title over the 'A' schedule property, unless she proves her exclusive ownership thereof. So much so, the decree of declaration of title granted in favour of the plaintiff over 'A' schedule property is liable to be set aside. 7. The main relief canvassed in the suit is seen couched negatively seeking a declaration that other than the plaintiff, none other has any right over 'A' schedule property. The R.S.A.NO.820/2003 12 documents produced in the case by the plaintiff in the backdrop of her case presented, prima facie, indicate that some other members of her family too have also some right over 'A' schedule, whether or not they are exercising such right over the same. Plaintiff has obtained a release deed from one among the members of her family and paid tax over the 'A' schedule would not entitle her to get the declaration of title over the above said property. However, in the given facts of the case, where the defendant had contended that there was a dedication of 'A' schedule way to the public, but, failed to establish such a defence, even if the plaintiff is found not entitled to the declaration of her title claimed in the suit, it has to be examined whether she had proved her exclusive possessory right over 'A' schedule, and if so, entitled to a declaration of possession and injunction canvassed in her suit. In examining that question, I find, on the materials placed, the possessory right of the plaintiff over 'A' schedule is established by the materials and by the proved facts and circumstances presented in the case. The defendant, who claimed that 'A' schedule is a public way, it is R.S.A.NO.820/2003 13 seen, has to seek the permission of the plaintiff to draw an electric line through 'A' schedule to her property. The evidence tendered by the plaintiff and her witnesses clearly established that the plaintiff has got exclusive possession and enjoyment over 'A' schedule property. The evidence of PW2, an Electricity Board official taken along with X1 and X2 series goes a long way in disproving the claim set up by the defendant that 'A' schedule is a public way. The defendant has not shown that she has got any right over 'A' schedule to put up gate in the eastern boundary wall of her property to have access to that road. The inconsistent case set up by her that she has left one foot width of land from her property while putting up the eastern boundary wall and by which 'A' schedule has the present width, and thus, she is entitled to use atleast that portion in 'A' schedule remained unsubstantiated by any material whatsoever. Where the plaintiff has established her exclusive possession and enjoyment over 'A' schedule property, though she has failed to prove her title thereto, she is entitled to the injunction applied for, both prohibitory and mandatory, against the defendant. In R.S.A.NO.820/2003 14 that view of the matter, I find that the decree passed by the courts below declaring the title of the plaintiff over 'A' schedule has to be modified to one of declaration of her possession over 'A' schedule retaining the other reliefs granted, prohibitory and mandatory injunction, against the defendant. The decree of both the courts below shall stand modified accordingly. The appeal to the extent of modification as indicated above is allowed, and dismissed with the rest, directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp