IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 RSA.No. 372 of 2005() --------------------- AS.128/2003 of ADL.D.C. & MACT,THODUPUZHA OS.280/1997 of MUNSIFF COURT,THODUPUZHA .................... APPELLANTS/APPELLANTS:PLAINTIFFS: ------------------------------------------------------------- 1. CHINNAMMA, W/O.CHACKO, VATTAKKULATHU HOUSE, THODUPUZHA KARA & VILLAGE, THODUPUZHA TALUK. 2. ALEXANDER JACOB, S/O.CHACKO, DO. DO. BY ADVS. SRI.MATHEW JOHN (K), SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS.DEFENDANTS. -------------------------------------------------------------------------- 1. SASI, S/O.GOPALA PILLAI, THAYYIL HOUSE, KARIKODU KARA, KARIKODU VILLAGE, THODUPUZHA TALUK. 2. SOMAN, S/O.ANINCHAN, KANDATHIKKARA HOUSE, DO. DO. DO. 3. SANKARA PILLAI, MALEPPARAMBIL HOUSE, DO. KARA, DO. DO. 4. GEORGEKUTTY, PAPPADIYIL HOUSE, DO. KARA, DO. DO. R1 TO R4 BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2010THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T No representation. Appeal is dismissed for default. There will be no order as to costs. 28/07/2010 Sd/- P.Bhavadasan, Judge /True Copy/ P.A.to Judge kss S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.372 OF 2005 & W.P.(C).NO.577 OF 2006 ----------------------------------- Dated this the 12th day of October, 2010 J U D G M E N T Plaintiffs are the appellants. Suit is for declaration of title and injunction, which was later amended for recovery of possession and damages. The trial court granted a decree of injunction and negatived the other reliefs canvassed by the plaintiffs. The appeal preferred by the plaintiffs to the extent they were aggrieved by the non-allowing of the claim for declaration of title and recovery of possession and damages by the trial court was turned down by the lower appellate court. Hence, the plaintiffs have preferred this second appeal. 2. Pending the appeal, the 2nd appellant as petitioner had filed a writ petition challenging a notice issued by a local authority directing him to remove some granite collection from the southern side of his property imputing that formed part of R.S.A.NO.372 OF 2005 & 2 W.P.(C).NO.577 OF 2006 the panchayat road. P9 is the copy of that notice. Canvassing that the area where the granite collection was stocked formed part of his registered holding and the dismissal of his suit had been taken advantage by the panchayat, at the instance of the defendants in the suit, the plaintiff filed the writ petition seeking the intervention of this Court to restrain the panchayat and to quash P9 notice. The 1st respondent in that writ petition has filed a counter resisting the petition. That petition has also been taken up for consideration along with this appeal. The relief canvassed in the writ petition, in the given facts of the case, depend to a larger extent in the final outcome of the appeal, wherein the appellants/plaintiffs have sought for a declaration and also recovery of possession of the property, which is alleged to have been trespassed upon and reduced into part of panchayat road. 3. Plaintiffs claimed title over the plaint properties, three items, of which 'C' schedule takes in the other two, 'A' and 'B' schedules, on the basis of two title deeds, A2 and A3, the former R.S.A.NO.372 OF 2005 & 3 W.P.(C).NO.577 OF 2006 obtained by the 1st plaintiff and the latter by the 2nd plaintiff. The 1st plaintiff is the mother and the 2nd plaintiff her son. The former under A2 obtained 35 cents and the latter under A3, 9 cents, both lying contiguously. Southern boundary of the above properties touching the panchayat road lying as a compact plot has given rise to the dispute involved in the suit. The defendants/respondents, who have joined together with a common intention to widen the panchayat road situate beside the plaint property, are bent upon trespassing upon portions of that property for the above purpose, was the basis of the case set up by the plaintiffs to claim the reliefs of declaration of title and injunction over the suit property against those defendants. After an interim order of injunction was issued by the court, it is the case of the plaintiffs that violating that order, the southern boundary wall was demolished and portions of that plaint property was annexed for the purpose of widening the road by the defendants. Plaintiffs thereupon amended the suit to claim recovery of possession of the trespassed area and also damages from the defendants. Resisting the suit claim, the defendants R.S.A.NO.372 OF 2005 & 4 W.P.(C).NO.577 OF 2006 contended that the declaration and recovery of possession sought for by the plaintiffs in respect of 'D' schedule property, which was shown as the trespassed area under the amended plaint, was not allowable. They contended that they are not asserting any right, title or interest in 'D' schedule property. According to the defendants, the 'D' schedule property is not an encroached portion and it does not form part of the registered holding of the plaintiffs under their title deeds. 4. On the issues settled over the pleading of the parties, both sides let in evidence, the 2nd plaintiff as PW1 and Exts.A1 to A3 for the plaintiffs, and one among the defendants as DW1. Commission reports and plans collected through an advocate commissioner were also exhibited as Exts.C1 to C3 series. C2 is a plan prepared by the Commissioner with the assistance of a Taluk Surveyor. The trial court, on the materials placed, as already indicated, found that the plaintiffs are not entitled to the declaration, recovery of title and damages, but, granted them a relief of perpetual prohibitory injunction against the defendants. R.S.A.NO.372 OF 2005 & 5 W.P.(C).NO.577 OF 2006 The lower appellate court was not inclined to interfere with the decree passed by the trial court disallowing the above claims canvassed by the plaintiffs, and it concurred with the view of that court below holding that since the defendants have not set up rival title over the suit property, plaintiffs are not entitled to get that declaration of title over that property. So far as the recovery of possession claimed by the plaintiffs, both courts have taken a view that since the defendants do not claim possession over the property and, further, the trespassed area at best could be taken only as part of the road obtained while widening was done at the instance of some parties, that relief cannot be granted to the plaintiffs. The lower appellate court also turned down the challenges raised by the plaintiffs against disallowing their claim of declaration of title, recovery of possession and damages. 5. The learned counsel appearing for the appellants conceded that the evidence on the claim of damages as against the defendants is scanty, and as such, any challenge against the R.S.A.NO.372 OF 2005 & 6 W.P.(C).NO.577 OF 2006 disallowing of that claim does not survive for consideration. However, the learned counsel for the appellants/plaintiffs took serious exception to the conclusion drawn by both the courts below to hold that the plaintiffs are not entitled to the declaration of title over the suit property despite the materials produced, which, according to the counsel, established that they have title over the registered holding covered by A2 and A3 deeds. The suit properties had been identified after measurement with reference to the title deeds through a Taluk surveyor and the trespassed area, which had been taken from the registered holding separately shown in C3 (a) plan produced by the commissioner with C3 report, and there was no challenge to that report and plan by the contesting defendants, who have been sued in the representative capacity after obtaining a permission of the court to do so effecting publication under Order I Rule 8 of the Code of Civil Procedure, submits the counsel. The defendants have not disputed the identification of the property as under C3 report and C3 (a) plan and no objection was filed to such report and plan is banked upon by the counsel R.S.A.NO.372 OF 2005 & 7 W.P.(C).NO.577 OF 2006 to contend that both the courts went wrong in disallowing the declaration of title canvassed over the plaint 'C' schedule property by the plaintiffs. In the same way, non-allowing of the recovery of plaint 'D' schedule property by the courts below is also impeached by the counsel contending that on the basis of title established by the materials produced, the plaintiffs are entitled to have such recovery. On the other hand, the learned counsel for the respondents/defendants contended that no interference with the concurrent decision rendered by the courts below holding that the plaintiffs are not entitled to the declaration of title and recovery of possession is called for in the given facts of the case and the materials tendered. The defendants are admittedly not in possession of the property, which is stated to have been trespassed upon for the purpose of widening of the road and the remedy of the plaintiffs, if any, is only to proceed against the local authority, and since that authority has not been impleaded as a party in the suit, no effective decree can be canvassed for or granted to the plaintiffs, is the submission of the learned counsel for the R.S.A.NO.372 OF 2005 & 8 W.P.(C).NO.577 OF 2006 defendants/respondents. 6. Perusing the judgments rendered by the courts below with reference to the submissions made by the counsel on both sides, I find both the courts have proceeded on a wrong basis that a declaration of title canvassed in the suit can be granted only if a rival claim of title is set up by the party against whom such relief was claimed. It seems that both courts have not taken note of the provisions covered by Sections 31 and 34 of the Specific Relief Act as to the legal entitlement of a party to seek a declaration of his title, that too, over an immovable property. Even where an apprehended act from the defendants is likely to cast a cloud over the title of the plaintiffs, it is open to them to seek a declaration of their title over an immovable property, and there need not be any overtact from the defendants, leave alone setting up of a rival title by such opposite party, to enable the plaintiffs to sue for a declaration, which is an indefeasible legal right running with the title over an immovable property. Whatever that be, in the given facts of the case, whether the R.S.A.NO.372 OF 2005 & 9 W.P.(C).NO.577 OF 2006 plaintiffs were entitled to a declaration of title and also recovery of possession as against the defendants necessarily deserve to be examined with reference to the totality of the facts and circumstances and materials presented in the case. 7. The trial court, on the materials placed, has found that the plaintiffs are entitled to a decree of injunction as against the defendants. No doubt, that relief was granted after taking note that under A2 and A3 deeds, the plaintiffs have title over the suit property. The plaint 'D' schedule, described as the trespassed area, which, according to the plaintiffs, was taken from the registered holding after institution of the suit, is now lying as part of the panchayat road situated on the southern side of the plaint property, cannot be given unmerited consideration as the lis has to be decided with reference to the fact scenario at the time of its institution unless the court finds that the subsequent events require to be taken note of to mould the reliefs in the suit. Where the plaintiffs have tendered materials that they have valid title over the registered holding covered by A2 and A3 deeds R.S.A.NO.372 OF 2005 & 10 W.P.(C).NO.577 OF 2006 irrespective of the question of recovery of possession over the trespassed area, which is stated to be so in view of the subsequent act, the entitlement of the plaintiffs to seek declaration of title canvassed in the suit warrant consideration by the court. True, the court will not grant ineffective decree of a declaration where it finds no purpose will be served by such declaration, and where there is no scope for granting any relief for recovery of possession since the defendants are shown to be not in possession of the trespassed area 'D' schedule, which, admittedly now forms part of the panchayat road. Plaintiffs have not made the panchayat local authority as a party to the suit. The learned counsel for the plaintiffs realising the predicament faced by the plaintiffs in getting an effective decree for declaration of title and for recovery of possession, for which, the presence of the panchayat in the party array is essential, urged for remitting the case after setting aside the judgments of the courts below providing him an opportunity to implead the local authority as a co-defendant in the suit. R.S.A.NO.372 OF 2005 & 11 W.P.(C).NO.577 OF 2006 8. Perusing the records of the case, I find that the defendants in the suit had been impleaded in a representative capacity and the plaintiffs had effected publication to do so after getting permission from the court, as covered by Order I Rule 8 of the CPC. The relief canvassed by the plaintiffs for declaration of title over their property has necessarily to be determined as against the defendants in the suit on the basis of the fact situation prevailing when the suit was instituted to. Subsequent event whatever that be, cannot be pressed into service to non-suit the plaintiffs and deny them the relief in case the plaintiffs are able to establish on the materials placed that plaint 'D' schedule was trespassed upon violating the order of injunction passed by the court. The defendants, by no stretch of imagination, in the event of the plaintiffs showing their entitlement of the declaration, resist the declaration if it is shown the 'D' schedule was annexed to the road from 'C' schedule after the suit was laid. However, the local authority, Panchayat, is not a party to the suit. Recovery of possession over 'D' schedule, if declaration of title thereto as part of 'C' schedule R.S.A.NO.372 OF 2005 & 12 W.P.(C).NO.577 OF 2006 is established, has necessarily to be viewed in the backdrop tht such trespassed area, now forms part of the existing road, allegedly after its widening. The request made by the learned counsel for the appellants for impleadment of the panchayat, I find, is not feasible in view of the mandatory statutory requirement of issuing notice to such local authority before institution of the suit. But, so far as the defendants are concerned, the entitlement of the plaintiffs to seek declaration in the present suit, no doubt, has to be determined as indicated above with respect to the cause of action pleaded by them as on the date of the suit. May be such declaration, ultimately, if the plaintiffs are found entitled thereto, will not be binding on the third party including the local authority. But after institution of the suit if there had been tampering and interfering of the plaint property, at the instance of the defendants, who have been impleaded in the representative capacity, definitely the plaintiffs cannot be denied of their legal entitlement to prosecute the suit for the reliefs raised in the suit. The decree that may be passed in the suit will not be binding on panchayat has little significance R.S.A.NO.372 OF 2005 & 13 W.P.(C).NO.577 OF 2006 if 'D' schedule is found have been trespassed upon after suit and it formed part of 'C' schedule, a registered holding of the plaintiffs. Both the courts below have not examined the materials in the case with reference to the aforesaid aspects, which have a direct bearing in adjudication of the disputed issues involved, and so much so, I find setting aside the dismissal of the appeal by the lower appellate court, the case has to be remitted to that court to examine the matter afresh and dispose the appeal on its merits after hearing both sides. 9. So far as the writ petition filed by the 2nd appellant/petitioner is concerned, it is open to him to challenge any adverse order, if any, passed pursuant to the notice issued by the local authority as provided by the Panchayat Rules before the competent authority. So much so, I find that the writ jurisdiction of the court cannot be invoked for challenging that notice issued by the Panchayat solely because the appeal is pending as against the dismissal of a suit before this Court and that appeal awaited consideration by this Court. Pursuant to R.S.A.NO.372 OF 2005 & 14 W.P.(C).NO.577 OF 2006 orders/directions issued by this Court in the writ petition, it is stated that after considering the objections raised by the petitioner, the panchayat had passed R1 (c) order. The implementation of R1 (c) order, it is ordered, shall be kept in abeyance for a period of one month to enable the petitioner to challenge such order before the competent authority and it is made clear that the time during which this writ petition was pending, shall be granted exemption in entertaining any such challenge, if preferred, within a period of one month. In the light of the discussions made above, setting aside the dismissal of A.S.No.128 of 2003, the lower appellate court is directed to take back that appeal on file and dispose it after hearing both sides in accordance with law taking note of the observations made above. Writ petition is disposed as indicated above. Both parties are directed to suffer their respective costs. Parties are directed to appear before the lower appellate court on 08.11.2010 and that court shall take every endeavour to dispose the appeal as expeditiously as possible. R.S.A.NO.372 OF 2005 & 15 W.P.(C).NO.577 OF 2006 Court fee paid on the appeal shall be refunded to the appellants, subject to rules. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.372 OF 2005 & 16 W.P.(C).NO.577 OF 2006