Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 2293 (KER)

Timin Tomy S/o Tomy v. Binosh S/o Paul

2025-08-25

EASWARAN S.

body2025
JUDGMENT : EASWARAN S., J. 1. The defendants in a O.S. No. 1343 of 2009 in Munsiff Court, Thrissur are the appellants. 2. Brief facts necessary for the disposal of the appeal are as follows: 2.1. The plaintiffs filed the suit for fixation of boundary and injunction. By registered Assignment Deed No. 1742 of 2006 dated 24.04.2006, the plaintiffs got right, title and interest in respect of the property. The Assignment Deed was executed in favour of the plaintiffs by one Sri. Joshy on 24.04.2006. According to the plaintiffs, the 1 st defendant is having a property on the eastern side of the plaint schedule property. The 2 nd defendant’s property is lying on the western boundary. The 1 st defendant is the son of the 2 nd defendant, and they are residing together. According to the plaintiffs, there is a pathway on the south side of the plaint schedule property which is used to reach the plaint schedule property and also the property of the defendants. On the northern side of the plaint schedule property, there is an iron fencing. The plaintiffs are residing at Alapuzha. During April, 2009, when the plaintiffs came to the property to measure it, the 2 nd defendant obstructed, and the plaintiffs returned. Taking advantage of the absence of the plaintiffs in the plaint schedule property, the defendants removed the concrete poles fixed on the east, south and west of the plaint schedule property and attempted to trespass and remove the soil from the plaint schedule property. The defendants resisted the suit contending that the plaintiffs are not in possession of the plaint schedule property. O.S. No. 659 of 2009 is a suit for cancellation of a document executed by the 1 st defendant in O.S. No. 1343 of 2009 in favour of Sri. Joshy which is pending and hence any subsequent sale by Sri. Joshy in favour of the plaintiffs, has no consequence. According to the defendants they did not intend to convey right, title and interest of the property to the said Joshy and document was executed only as a security document. On behalf of the plaintiffs, Exts. A1 to A4 documents were produced and PW1 and PW2 were examined. On behalf of the defendants, Exts. B1 and B1(a) documents were marked and DW1 and DW2 were examined. Exts. On behalf of the plaintiffs, Exts. A1 to A4 documents were produced and PW1 and PW2 were examined. On behalf of the defendants, Exts. B1 and B1(a) documents were marked and DW1 and DW2 were examined. Exts. C1 is the report of the Advocate Commissioner and C1(a) is the rough sketch. 2.2. The Trial Court on appreciation of oral and documentary evidences came to the conclusion that the plaintiff have not established the possession of the plaint schedule property especially in the light of the oral testimony of DW2, the Advocate Commissioner. Aggrieved the plaintiff preferred A.S. No. 251 of 2014 before the Additional Sub Court-II, Thrissur. The First Appellate Court vide judgment dated 15.06.2017, reversed the findings of the Trial Court and allowed appeal, decreed the suit in terms of C1 report and C1(a) rough sketch. While reversing the judgment and decree, the First Appellate Court found that the defendants did not filed any objection to the report of the Advocate Commissioner and that the appreciation of the evidence by the Trial Court is perverse. Aggrieved by the judgment and decree of the First Appellate Court, the defendants have come up in the present appeal. 3. On 25.07.2024, this Court while admitting the appeal framed the following question of law: Whether there is any perversity in the judgment of the First Appellate Court reversing the judgment of the trial Court finding possession with the defendants and finding no cause of action for the plaintiff? 4. Heard Sri. K. B. Gangesh, the learned Counsel appearing for the appellants and Sri. Asok Kumar P Kodath, the learned Counsel appearing for the respondents/plaintiffs. 5. The learned Counsel for the appellants, Sri. K.B. Gangesh submitted that in the absence of any reliefs in the form of recovery of possession, the plaintiffs are not entitled for any reliefs sought for in the appeal. It is the specific case that the plaint schedule property is still in the possession of the defendants as revealed from the evidence adduced before the Trial Court. In a case where the plaintiffs are not in possession of the plaint schedule property, a suit for fixation of boundary is not maintainable. It is the specific case that the plaint schedule property is still in the possession of the defendants as revealed from the evidence adduced before the Trial Court. In a case where the plaintiffs are not in possession of the plaint schedule property, a suit for fixation of boundary is not maintainable. In support of his contention the learned Counsel for the appellants relied on the decision of this Court in Anjil Vellachi and Others v. Mamuni Bhaskaran alias Vattayi Bhaskaran, 2009 (3) KHC 728 and the decision of the Supreme Court in Krishna Reddy K.M. v. Vinod Reddy, 2023 KHC 6893. 6. Per contra, the learned Counsel appearing for the plaintiffs countered the submissions of the learned Counsel for the appellants with reference to Ext.A1. According to the learned Counsel for the plaintiffs, from the contents of Ext. A1, it is explicitly clear that the possession of the plaint schedule property was handed over to the plaintiff. Admittedly, the defendants had questioned the transfer of plaint schedule property in favor of Sri. Joshy in O.S. No. 659 of 2009 which ended in a dismissal. Therefore, the plaintiffs being the subsequent assignees from Sri. Joshy were entitled to maintain a suit for fixation of boundary. The First Appellate Court rightly interfered with the findings rendered by the Trial Court especially since the finding was rendered on a perverse appreciation of facts. It is further submitted that the subsequent appeal against O.S. No. 659 of 2009 was also dismissed and the defendants did not pursue the remedy thereafter. 7. I have considered the submissions raised across the Bar and I have perused the judgments rendered by the Courts below and also the records of the present case. 8. In order to consider the question of law framed by this Court, it is necessary for this Court to consider as to whether the appreciation of evidence by the First Appellate Court is perverse or not? In order to consider the said issue, one must necessarily see as to whether the Trial Court was justified in finding that the plaintiffs are not in possession of the plaint schedule property. The findings recorded by the Trial Court as regards the failure of absence of possession of the plaintiffs over the plaint schedule property are seen in paragraphs 10 and 11 which are extracted as under: “10. DW2 is the Adv. The findings recorded by the Trial Court as regards the failure of absence of possession of the plaintiffs over the plaint schedule property are seen in paragraphs 10 and 11 which are extracted as under: “10. DW2 is the Adv. Commissioner appointed in OS.659/2009 and she has filed Ext.B1 report & Ext.B1(a) sketch. Her inspection was on 24.04.2009. During her inspection she had not seen any concrete poles to demarcate the plaint schedule property with the boundary properties of the defendants herein. She has categorically stated in the box as well as in the report that the disputed property herein and the neighbouring properties of the defendants are lying as a compact area. It is to be noted that the plaintiffs alleged that on 24.05.2009 the defendants removed the concrete poles and the concrete poles were fixed by their predecessor. Ext. A1 was in the year 2006. That means, if the contention of the plaintiffs is true the concrete poles were fixed before 2006. But DW2 the Adv. Commissioner in OS.659/2009 could not see such concrete poles on 24.04.2009 which is just one month before the alleged cause of action. This is a clear indication that there was no boundary marks separating the plaint schedule property from the neighbouring properties of the defendants and the contention of the plaintiffs that there were boundary marks to separate the plaint schedule property from the properties of defendants is false. 11. The plaintiffs are admittedly residing at Alapuzha. One Murali is the brother-in-law of PW1 the first plaintiff and he is looking after the affairs of the plaint schedule property as seen from the deposition of PW1. It is further alleged that Murali informed the plaintiffs about the above alleged incident of trespass on 24.05.2009. But Murali was not examined in this case. PW1 admitted that Murali is available in Thrissur and he is an autorickshaw driver. The non-examination of Murali in this case is vital to the case of the plaintiffs. PW2 was examined as a witness and he deposed that he was also informed by Murali about the alleged trespass by the defendants and he witnessed it. During cross examination PW2 has admitted that he was a party to the money transaction between the defendants and the assignor of Ext.A1. He had a contract for sale of 10 cents of land including the disputed property. During cross examination PW2 has admitted that he was a party to the money transaction between the defendants and the assignor of Ext.A1. He had a contract for sale of 10 cents of land including the disputed property. He is not a resident of the area where the plaint schedule property is situated. Therefore, the oral evidence let in by PW2 does not appear to be trustworthy. No local witness could be examined to prove the incident. Even though PW1 deposed that he is plucking coconuts from the coconut tree in the plaint schedule property, the so called coconut climber referred by him was also not examined. The oral evidence given by DW2 the Adv. Commissioner in the earlier suit make it clear that the properties of the defendants and the plaint schedule property were lying as a compact area even before the alleged cause of action in this suit. These are all the circumstance to probablize the case of the defendants that they are still holding possession of the plaint schedule property and it was never handed over to the plaintiffs or their predecessor Mere production of Ext.A1 or the basic tax receipt cannot be treated as a ground to hold that the plaintiffs are in actual physical possession of the plaint schedule property. Thus I find this issue against the plaintiffs.” 9. Read as may, this Court did not find any observations by the Advocate Commissioner in its report stating that the plaintiffs are not in possession of the plaint schedule property. Admittedly, the plaint schedule property is a vacant land. Necessarily, the title being vested in the plaintiffs, the possession follows the same. Therefore, it is irresistible for this Court to conclude that the Trial Court had completely erred to find that the plaintiffs are not in possession of the plaint schedule property. At any rate, the defendants having failed to substantiate their claim that the document executed by them in favour of Sri. Joshy who is the predecessor of the plaintiffs and that he did not intend to convey a valid title in favour of Joshy having failed and which resulted in the dismissal of O.S. No. 659 of 2009, cannot successfully resist the claim for fixation of boundary by the assignee from the said Joshy. Joshy who is the predecessor of the plaintiffs and that he did not intend to convey a valid title in favour of Joshy having failed and which resulted in the dismissal of O.S. No. 659 of 2009, cannot successfully resist the claim for fixation of boundary by the assignee from the said Joshy. In fact, as regards the contents and character of the document executed by the defendants in favour of Joshy having been concluded in O.S. No. 659 of 2009, necessarily, the plaintiffs were entitled to maintain the suit for fixation of boundary. The defendants were unsuccessful in proving that they were in possession of the plaint schedule property. Admittedly, for entry into the plaint schedule property, the Advocate Commissioner has clearly found that both parties will have to use the one dhand wide road. Therefore, when an alternate entry is provided to the plaint schedule property, one cannot comprehend the stand of the defendants that the plaintiffs was not given possession pursuant to the execution of the sale deed. That being so, this Court is not persuaded to hold that the appreciation of evidence by the First Appellate Court was perverse. Apart from that, this Court cannot remain oblivious of the fact that the defendants did not chose to file any objection to the Commissioner report. Therefore, the First Appellate Court decided to accept Ext.C1 report and C1(a) rough sketch. Therefore, it has to be concluded that appreciation of the facts evidenced by the First Appellate Court cannot be termed as ‘perverse’. 10. As regards the contention raised by the appellants that in a suit for fixation of boundary cannot be sustained without a claim for recovery of possession, this Court must note that the decision cited across the Bar cannot apply to the facts of the present case. Admittedly, this Court has found that the plaintiffs have not lost possession of the plaint schedule property. Therefore, they were entitled to maintain a suit for fixation of boundary without seeking any relief for recovery of possession. Resultantly, answering the question of law against the appellants, this Court finds that there is no merit in the appeal and the same is dismissed. Parties are directed to suffer the respective costs.