Case: Poonnamma Jagadamma  Vs. Narayanan Nair

be ordered for executing the decree. If necessary, an Advocate Commissioner can also be appointed by the execution Court to assist the Amin to execute the decree."6. This decision has been assailed by the Appellants mainly on the argument that the High Court exceeded its jurisdiction in exercise of powers under Section 100 of CPC. The High Court re-appreciated the evidence on record to reverse the decision of the District Court, which had allowed the appeal preferred by the Appellants by setting aside the decree passed by the Trial Court in its entirety and also dismissed the suit filed by the Respondent No.1- plaintiff. As a matter of fact, the High Court did not answer the substantial questions of law formulated by it but went on to carve out an arrangement which it found would meet the ends of justice. According to the Appellants, even though the High Court affirmed the finding recorded by the Courts below that the Respondent No.1 - plaintiff had not substantiated his title and moreso his exclusive possession over the suit property where the proposed compound wall has been allowed to be constructed, the question of granting any relief to the Respondent No.1 - plaintiff did not arise.7. Respondent No.1 on the other hand contended that the fact that he was one of the co-owners of the suit property was indisputable. Even if the 10 cents of the suit property bequeathed to Achuthan Nair (his brother) has not been demarcated, that would make no difference to the co-ownership of Respondent No.1 over the suit property. On the basis of this claim of co-ownership, there was nothing wrong in the order passed by the High Court granting limited relief to Respondent No.1 to erect the compound wall in the suit property. According to Respondent No.1, it was not the case of Appellants that the location where the compound wall has been permitted to be constructed by the High Court was not on the suit property or in any way affecting the occupation and possession of any neighbouring property including that of the Appellants bearing Survey No.2061. Respondent No.1 submitted, in that sense, the decision of the High Court was a benign direction which did not affect the rights of the Appellants in any manner. In other words, the High Court permitted the Respondent No.1 to do what he was otherwise entitled to do in law, to put up a compound wall on the suit property without affecting the rights of any neighbouring property owner. The Appellants cannot claim any right over that portion of the suit property on which the compound wall has been allowed to be constructed. According to Respondent No.1, in the fact situation of the present case, this Court ought to be loath to interfere with a just and fair order passed by the High Court and moreso because the same is not adverse to the Appellants in any manner.8. Having considered the rival submissions, we find force in the argument of Respondent No.1 that even if the claim of Respondent No.1 regarding title over the whole of the suit property is answered against him, that does not necessarily negate his claim of being a co-owner of the suit property along with his brother. The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent No.1, Achuthan Nair) under a Will executed by their father has still not been done, that would not negate the Respondent No.1 from being a co-owner in the suit property along with his brother and to have undivided share therein. Being a co-owner of the suit property, there is nothing wrong if Respondent No.1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief granted by the High Court to construct such compound wall, is very specific and in no manner likely to adversely affect the Appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf.9. So long as the compound wall is constructed by the Respondent No.1 on the portion of suit property over which the Appellants have no right, title or interest; and by leaving out the portion which has been encroached upon by the Appellants/ defendants and some more land from such trespassed portion, the Appellants can have no grievance whatsoever. It is a different matter that the High Court has not dealt with each of the substantial questions of law formulated while entertaining the second appeal. As the arrangement provided by the High Court would meet the ends of justice and also avoid any further litigation between the parties, it would not be necessary to deal with all the substantial questions of law. As a matter of fact, in absence of specific denial about the execution or existence of the said Will by the Appellants - defendants, the question of examining the issue of admissibility of that Will pales into insignificance. The High Court also justly noted that the beneficiary under the Will was not before the Court. Even for this reason, it would be unnecessary to answer the substantial questions of law formulated at the instance of the Appellants - defendants and because the nature of the arrangement predicated by the High Court is such that it would not affect the rights of the Appellants - defendants in any manner with regard to the enjoyment of the property owned or occupied by them bearing Survey No.2061 and including the stated encroached portion in Survey No.2063. In that sense, there is no subsisting cause for the Appellants to question the correctness of the Will nor is there any tangible ground to assail the arrangement specified by the High Court while disposing of the second appeal filed by Respondent No.1.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. Having considered the rival submissions, we find force in the argument of Respondent No.1 that even if the claim of Respondent No.1 regarding title over the whole of the suit property is answered against him, that does not necessarily negate his claim of being aof the suit property along with his brother. The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent No.1, Achuthan Nair) under a Will executed by their father has still not been done, that would not negate the Respondent No.1 from being ain the suit property along with his brother and to have undivided share therein. Being aof the suit property, there is nothing wrong if Respondent No.1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief granted by the High Court to construct such compound wall, is very specific and in no manner likely to adversely affect the Appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf.9. So long as the compound wall is constructed by the Respondent No.1 on the portion of suit property over which the Appellants have no right, title or interest; and by leaving out the portion which has been encroached upon by the Appellants/ defendants and some more land from such trespassed portion, the Appellants can have no grievance whatsoever. It is a different matter that the High Court has not dealt with each of the substantial questions of law formulated while entertaining the second appeal. As the arrangement provided by the High Court would meet the ends of justice and also avoid any further litigation between the parties, it would not be necessary to deal with all the substantial questions of law. As a matter of fact, in absence of specific denial about the execution or existence of the said Will by the Appellantsdefendants, the question of examining the issue of admissibility of that Will pales into insignificance. The High Court also justly noted that the beneficiary under the Will was not before the Court. Even for this reason, it would be unnecessary to answer the substantial questions of law formulated at the instance of the Appellantsdefendants and because the nature of the arrangement predicated by the High Court is such that it would not affect the rights of the Appellantsdefendants in any manner with regard to the enjoyment of the property owned or occupied by them bearing Survey No.2061 and including the stated encroached portion in Survey No.2063. In that sense, there is no subsisting cause for the Appellants to question the correctness of the Will nor is there any tangible ground to assail the arrangement specified by the High Court while disposing of the second appeal filed by Respondent No.1.