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2022 DIGILAW 947 (KER)

REMANAN S/O PURUSHOTHAMAN v. CHITHRAN S/O KORU

2022-11-07

M.R.ANITHA

body2022
JUDGMENT : M.R. ANITHA, J. 1. This Regular Second Appeal has been directed against the judgment and decree in A.S. No. 43/2015 on the file of Additional District Court-II, Alappuzha which in turn arise out of the judgment and decree in O.S. No. 628/2012 on the file of Munsiff's Court, Alappuzha. 2. Plaintiff is the appellant. Suit is one for permanent prohibitory injunction. (Parties will hereinafter be referred as per their status before the trial court). 3. Plaint schedule property having an extent of 8 cents originally belonged to the father of the plaintiff who obtained the same as per partition deed No. 2401/1983 of S.R.O. Alappuzha. After the death of father, property devolved upon the plaintiff and his brother Madanappan. Whereabouts of brother is not known for the last more than 25 years. Plaintiff is the absolute owner in possession of the plaint schedule property. It is lying with well defined boundary stones and fence in its north and east. Plaintiff is residing 8 kms away from the plaint schedule property. 2nd defendant is the daughter of the paternal uncle of the plaintiff. The first defendant is her husband and the third defendant is her son. Second defendant has got some property on the western side of the plaint schedule property. The boundary fence separating the plaintiffs and the second defendant's property got damaged due to old age and the properties are now separated with boundary stones. Defendants have no manner of right over the plaint schedule property. The relationship between the plaintiff and the defendants are not cordial. 4. First defendant had filed O.S. No. 25/1993 before the Munsiff's Court, Alappuzha for specific performance of contract against father of the plaintiff, but it was dismissed on 21.12.1995 and the appeal preferred against it also stood dismissed on 12.06.2018. Taking advantage of the situation that the plaintiff is residing away from the plaint schedule property, defendants are attempting to trespass upon the plaint schedule property and raising illegal claims over the schedule property. Hence the suit. 5. Defendants entered appearance and filed written statement contending that the suit has been filed to take forcible possession of the plaint schedule property from the defendants who are in possession of the property even prior to the execution of partition deed. Plaintiff or his brother have no right over the plaint schedule property. Hence the suit. 5. Defendants entered appearance and filed written statement contending that the suit has been filed to take forcible possession of the plaint schedule property from the defendants who are in possession of the property even prior to the execution of partition deed. Plaintiff or his brother have no right over the plaint schedule property. Defendants are residing in four cents of property situated on the western side of the plaint schedule property. During the lifetime of plaintiff's father, he approached the defendants and agreed to sell the property to the first defendant and executed an agreement for sale for a total consideration of Rs. 29,000/- and received an advance of Rs. 15,000/- and hence the property is in the possession of the defendants. The brother of the plaintiff is in Mumbai and is residing with family. Plaint schedule property is lying contiguous with 4 cents of property of defendants. There is no fence or wall separating the properties. The possession of the defendants over the schedule property turned adverse to the title holders including plaintiff from 21.12.1995 when the suit for specific performance was dismissed. So, the defendants are in hostile possession of the schedule property openly continuously and adversely for the last 17 years. Now, after the period of limitation the title of the defendants over the plaint schedule property is matured by adverse possession. Defendants never attempted to trespass to plaint schedule property since they are already in possession of the schedule property. Hence plaintiff has no cause of action in filing the suit. 6. PW-1 examined and Exts.A1 to A4 marked from the side of the plaintiff. DW-1 to DW-3 examined from the side of the defendants. Advocate Commissioner was examined as CW-1. Exts.C1 series and C2 series were also marked. Thereafter, on appreciating the facts and circumstances and evidence adduced, trial court found that defendants are in possession and enjoyment of the property and plaintiff has not established possession and enjoyment of the property and accordingly the suit was dismissed. Against which appeal was filed and the first appellate court confirmed the judgment and decree and dismissed the appeal. Aggrieved by the concurrent findings, plaintiff approached this Court in second appeal. 7. Notice was issued to the respondents/defendants. Lower court records were called and both sides were heard. 8. Against which appeal was filed and the first appellate court confirmed the judgment and decree and dismissed the appeal. Aggrieved by the concurrent findings, plaintiff approached this Court in second appeal. 7. Notice was issued to the respondents/defendants. Lower court records were called and both sides were heard. 8. According to the learned counsel for the plaintiff, plaintiff is the title holder of the plaint schedule property and he proved the possession by producing tax receipt. A commission was also taken to prove that plaint schedule property is lying demarcated from the western side property of the defendants. But, mis-appreciating the facts and circumstances and evidence, courts below dismissed the suit. 9. Learned counsel for the defendants, on the other hand, contend that the plaintiff was never in possession of the plaint schedule property. It is also contended that even before the partition deed, Ext.A1 by which the plaintiff's father obtained the schedule property, they were in possession of the property. It is also contended that the plaintiff's brother is in Mumbai and is living there with family. Neither the plaintiff nor his father ever possessed the plaint schedule property and right, if any, to the plaintiff has been lost by hostile continuous uninterrupted possession of the defendants. 10. Based on the above, following substantial question of law is formulated: “(i) Whether the judgment and decree passed by the courts below is perverse due to mis-appreciation of evidence? (ii) Whether the dismissal of the suit on the ground that the plaintiff failed to prove right and title over the plaint schedule property is illegal in view of Exts.A1 and A2 documents produced from the side of the plaintiff?” 11. To prove the plaintiff's right, title and possession, the plaintiff was examined as PW-1 and Ext.A1 is the partition deed by which the plaintiff's father was allotted B schedule property covered by that deed. Second defendant is none other than the niece of the father of the plaintiff. Admittedly, her property is situated on the western side of the plaint schedule property. The specific case of the plaintiff is that there is well demarcated boundary stones and there had boundary fence which had been lost due to old age. Along with the suit, a Commission was taken and Exts.C1 and C1(a) are the report and plan filed by the Commissioner. The specific case of the plaintiff is that there is well demarcated boundary stones and there had boundary fence which had been lost due to old age. Along with the suit, a Commission was taken and Exts.C1 and C1(a) are the report and plan filed by the Commissioner. Commission report would reveal that due to the obstruction caused by the 2nd defendant's sister, Commissioner retreated without conducting proper inspection. Exts.C2 and C2(a) are the report and plan of the Commissioner based on the subsequent inspection made by him and it is reported by the Commissioner that on the northern boundary of the plaint schedule property there is a fence and the boundaries of the plaint schedule property is lying clearly demarcated. The Commissioner also reported that at the time of second inspection, the boundary stone on the western boundary was found replaced and apart from that, all the other boundaries are lying clearly demarcated. So, the contention of the defendants that the plaint schedule property is not lying demarcated and is lying contiguous with her property is not seems to be correct. 12. Learned Munsiff found that plaintiff did not adduce any evidence to show the title and possession of the plaint schedule property after Ext.A2 and it is further found that the evidence adduced from the side of the defendants would prove that the plaint schedule property is in the possession and enjoyment of the defendants and it is lying contiguous with the property of the defendants. It is further found that the evidence of the defendants would show that after the dismissal of the suit for specific performance on 21.12.1995, defendants are in possession of the plaint schedule property. It is further found that the evidence of DW-1 is supported by DW-2 and DW-3, her neighbours. Trial court also found that the Commissioner's report also shows that the plaint schedule property and defendants' property are lying continuous. So, the above findings of the trial court appear to be based on misappreciation of the evidence adduced in the case and is perverse. 13. Trial court also found that the Commissioner's report also shows that the plaint schedule property and defendants' property are lying continuous. So, the above findings of the trial court appear to be based on misappreciation of the evidence adduced in the case and is perverse. 13. First appellate court also, without any application of mind found that PW-1 admitted in cross-examination that his father received Rs.15,000/- from the first defendant under an agreement dated 04.02.1988 for sale of the plaint schedule property and further found that he admitted that there is no fence separating the said property with the property of the defendants. It is also found that the plaintiff could not state whether there is yield from the coconut trees. It was further found that deposition of CW-1 revealed that the plaint schedule property is lying contiguously. All those factors were taken into account to find that plaintiff is not in possession of the property. 14. It is to be noted that in the commission report, the Commissioner categorically stated about the boundary stones. During evidence also, Commissioner as CW-1 categorically stated that at the time of first inspection there was clear boundary to the plaint schedule property and there was obstruction to carry out inspection and the Commissioner could not complete the inspection on that date and it is also reported that the plaint schedule property and the defendants' property are clearly demarcated with boundary stones. So also, during cross-examination, the Commissioner has categorically stated that, on the western side of plaint schedule property, there is boundary. So, the first appellate court, merely picking up statements from here and there of PW-1 and CW-1 found that defendants are in possession of the plaint schedule property. 15. The learned counsel for the defendants would contend that defendants had raised a specific contention of long hostile continuous uninterrupted possession of the plaint schedule property by the defendants and thereby perfection of title by adverse possession over the plaint schedule property, but no issue has been raised by the trial court and no finding also entered into by the trial court in that regard. It is true that the written statement contains an averment regarding the adverse possession and the trial court did not raise any issue about the perfection of title by the defendants by adverse possession. It is true that the written statement contains an averment regarding the adverse possession and the trial court did not raise any issue about the perfection of title by the defendants by adverse possession. But, during cross-examination of the defendants, she was very specific that the right she claimed over the plaint schedule property is the money paid towards advance and apart from that, she has no other right. The defendants though raised a contention in the written statement that possession was given to the first defendant as per the agreement for sale, the said document has not been produced before the court. So, also, the suit for specific performance filed by the first defendant has been dismissed and according to the learned counsel for the plaintiff, the appeal filed against the judgment has also been dismissed by this Court. So, the claim on the ground of agreement for sale executed between the plaintiff's father as well as the first defendant will not amount to any conferment of title upon the first defendant since the suit itself has been dismissed. 16. Evidence adduced through DW-2 and DW-3 also will not convincingly establish the possession of the plaint schedule property by the defendants. DW-2 started residence in the locality only four years prior to his examination and DW-3 though stated in the chief affidavit that defendants are in possession of the schedule property for the last 30 to 35 years, during cross-examination, he deposed that the western side of the property involved in the case is that of the defendants. So also, though he claims that he is aware of the possession of the property by the defendants for the last 30-35 years, he did not reveal as to how the defendant was enjoying the property. But, at the same time, he could clearly point out the property allotted to the defendants in partition case. Hence the evidence of DW-2 and DW-3 is quite insufficient to prove the long continuous uninterrupted hostile possession of plaint schedule property by the defendants. 17. But, at the same time, he could clearly point out the property allotted to the defendants in partition case. Hence the evidence of DW-2 and DW-3 is quite insufficient to prove the long continuous uninterrupted hostile possession of plaint schedule property by the defendants. 17. Question may also arise as to whether a remand of the case would be required to meet the ends of justice in view of the specific contention of the learned counsel for the defendant that inspite of specific contention in the written statement no issue regarding adverse possession and limitation has been raised by the trial court and no finding also entered into specifically with regard to the question of adverse possession. 18. On going through the judgment of the learned Munsiff, it could be seen that there is a specific finding that the defendants have been in possession of the plaint schedule property for a very long period though specifically the word adverse possession has not been stated. So also, the suit has been dismissed by the trial court finding that the defendants are in possession of the property. First appellate court without discussing any material aspects dismissed the appeal. 19. In Sekharan Nambiar vs. Ramanunni Nambiar, 1992 (1) KLT 429 while dealing with Order 41 Rules 23 and 24 and the power of remand of the appellate court it has been held that when each party went to trial fully knowing the rival case and leading evidence not only in support of his own contentions but in refutation of those of other side, it cannot be said that absence of issue was fatal to the case. In that case, parties not only went to trial knowing the rival contentions and led evidence, a specific issue with regard to the question whether the property is a tharavadu or not is also framed. In the said circumstances, it was held that there is no justification to remand the matter to enable the party to amend the plaint. 20. In Eliyamma vs. Deputy Collector, 2021 (1) KLT 417 it has been held that remand is permissible only when the appellate court arrives at the finding that the judgment of the trial court is erroneous and is liable to be reversed or set aside, it is a condition precedent for passing an order under Rule 23 and 23A of Order XLI of Code of Civil Procedure. 21. 21. In Gopalakrishnan vs. Ponnappan, 2021 (5) KLT 751 a learned Single Judge while dealing with Order XLI Rules 23 and 23A it has been held that remand of a case either to fill up the lacuna in the evidence or in the case set up or failure to adduce evidence cannot be a ground of remand when the dispute was within the knowledge of parties and proceeded or defended with the suit with that knowledge. 22. In Shivakumar vs. Sharanabasappa, 2020 (2) KLT Online 1144 SC, a three Judge Bench of the Apex Court held that when the available evidence is sufficient to dispose of the matter, the proper course for an appellate court is to follow the mandate of Rule 24 of Order XLI of the Code of Civil Procedure and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It is also held that it remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. 23. In this case, the defendants raised a plea of adverse possession in the written statement and witnesses were also examined to prove the long, uninterrupted hostile possession of the plaint schedule property by the defendants and the trial court dismissed the suit finding that the defendants are in possession of the plaint schedule property for a long period. The fact that no specific issue regarding adverse possession and limitation has been raised by itself is not a ground to remand the matter since parties went to trial knowing the rival contentions and led evidence in the aspect of long continuous possession also. So also, remand of the matter is not going to make any improvement because the available evidence will not prove any adverse possession in favour of the defendants. So also, trial court wrongly found that plaintiff failed to prove title over the property. So, at any cost, this is not a case in which remand of the matter is called for just for the reason that a specific issue of prescribing title of defendants by adverse possession has not been raised by the trial court. 24. So also, trial court wrongly found that plaintiff failed to prove title over the property. So, at any cost, this is not a case in which remand of the matter is called for just for the reason that a specific issue of prescribing title of defendants by adverse possession has not been raised by the trial court. 24. Plaintiff was examined as PW-1 and produced Ext.A1 partition deed by which the property was obtained by his father and Ext.A2 is the tax receipt issued in the name of the father of the year 1989. The specific case of the plaintiff is that after the death of his father the property devolved upon the plaintiff and his brother and the whereabouts of the brother is not known for the last more than 25 years and he has been in possession and enjoyment of the plaint schedule property. It has been found by the trial court that the date of death of the father of the plaintiff is not stated in the plaint or during evidence and the plaintiff is residing away from the plaint schedule property. Finding that Ext.A1 is the partition deed of the plaintiff's father and Ext.A2 is the tax receipt issued in the name of the father, the trial court jumped to a conclusion that PW-1 has no absolute title and exclusive possession of the plaint schedule property. 25. It is to be noted that 2nd defendant is none other than plaintiff's uncle's daughter (2nd defendant is the niece of plaintiff's father). So she may be well aware of the death of her father's brother. It is not disputed that the plaintiff's father is no more. Once the father is no more, naturally the property will devolve upon the legal heirs, that is, the plaintiff and his brother. Though the defendants would contend that plaintiff's brother is residing in Mumbai with his wife and children, since the suit is one for simple injunction, one of the co-owners, the plaintiff can very well maintain a suit for injunction. 26. Plaintiff as PW-1 filed chief affidavit and sworn in categorically that the plaint schedule property is lying separately demarcated with boundary stones and the defendants' property is situated on the western side of plaintiff's property and the fence which was in existence separating those properties had decayed due to the passage of time. 26. Plaintiff as PW-1 filed chief affidavit and sworn in categorically that the plaint schedule property is lying separately demarcated with boundary stones and the defendants' property is situated on the western side of plaintiff's property and the fence which was in existence separating those properties had decayed due to the passage of time. The boundary stones on four boundaries of the plaint schedule property has been specifically noted by the Commissioner also. During cross-examination also, plaintiff stick to the stand that he was in possession and enjoyment of the property and the suggestion that after the partition deed, the plaintiff's father or himself had never possessed the property is stoutly denied by him also. So the right and title of the plaintiff could be established by the plaintiff. 27. In this context, the learned counsel for the plaintiff drew my attention to Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and Others, (2008) 4 SCC 594 wherein while dealing with recovery of specific immovable property and appropriate remedy in various classes of cases, it has been held that where plaintiff's title is under a cloud and he does not have possession, the remedy is a suit for declaration of possession with or without consequential injunction and where there is mere interference with plaintiff's lawful possession and there is threat of dispossession, suit for injunction simplicitor is sufficient. 28. In paragraph 14 of the judgment, it has been held that if the property is a vacant site, the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. Though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. 29. In the present case, plaintiff established the devolution of the title of the plaint schedule property upon him and his brother after the death of father who obtained the schedule property by virtue of Ext.A1 partition deed. Ext.A2 tax receipt proved the payment of tax by the father in the year 1989. Admittedly, in the plaint schedule property nobody is residing. Ext.A2 tax receipt proved the payment of tax by the father in the year 1989. Admittedly, in the plaint schedule property nobody is residing. Hence the proposition that possession follows title applies and hence injunction sought for ought to have been granted in favour of the plaintiff. 30. So, on a close evaluation of the facts and circumstances and evidence adduced from either side, I am of the view that the courts below dismissed the suit on a misconstruction of evidence adduced from both sides and hence is perverse. 31. In the result, the judgment and decree passed by the courts below are set aside and suit decreed restraining the defendants and their men from trespassing into the plaint schedule property and committing any waste thereon. Appeal allowed with cost.