1. Property dispute — Claim for mandatory injunction and boundary wall construction based on a registered Will — Alleged encroachment by neighboring property owner. (Para 1 , 3 )
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2017 Supreme(SC) 425
SUPREME COURT OF INDIA
Dipak Misra, A.M.Khanwilkar, JJ.
Poonnamma Jagadamma & Others – Appellants
Versus
Narayanan Nair & Others – Respondents
CIVIL APPEAL NO.5366 OF 2017 (Arising out of SLP (Civil) No.3873 of 2014)
Decided On : 01-05-2017
Important Points
IMPORTANT POINTS
When opposite party admits existence of a Will proving thereof or its probate becomes immaterial.
Any co-owner can maintain a suit for injunction and protecting the property.
When directions are issued to do substantial justice which does not adversely affect the opposite party, non consideration of substantial questions of law formulated dos not vitiate a decision u/s 100, CPC.
When opposite party admits existence of a Will proving thereof or its probate becomes immaterial.
Any co-owner can maintain a suit for injunction and protecting the property.
When directions are issued to do substantial justice which does not adversely affect the opposite party, non consideration of substantial questions of law formulated dos not vitiate a decision u/s 100, CPC.
Subject
Property Law - Boundary Dispute
Act Referred
Headnote
(a) Indian Succession Act, 1925 – Section 63 r/w section 68, Indian Evidence Act, 1872 – Proving of Will – Attesting witnesses dying before filing of suit – Will not probated – Opposite party admitting existence of Will – Held, proving thereof or probate not material. (Para 9)
(b) Property law – Father bequeathing property to his two sons – Their shares not demarcated – Still they are co-owners of the full property – Either of the two brothers entitled to obtain relief to protect the property. (Para 9)
(c) Code of Civil Procedure, 1908 – Section 100 – Suit by one co-owner for injunction and erection of compound wall to protect the property – Opposite party admitting existence of Will bequeathing property to petitioner and his brother – High Court giving directions to do substantial justice – Not deciding substantial questions of law formulated at instance of opposite party – Opposite party not adversely prejudiced by the directions – No infirmity in the directions. (Para 9)
Facts of the case:
The father of Respondent No.1 was the owner, who, during his life-time sold 20 cents of his land to a third party. The remaining 59 cents were purportedly given by the father of Respondent No.1 to him and his brother Achuthan Nair by a registered Will. The present proceedings pertain to the said 59 cents of land bearing Survey No.2063. The Appellants are in occupation of the neighbouring property bearing Survey No.2061 and have constructed a building thereon.
Both sides were unsuccessful in getting relief of injunction against the other party in their respective suits.
In the second round of litigation, the High Court permitted respondent 1 to erect compound wall around the suit property of 59 cents.
Appellants have challenged the judgment on the ground that High Court exceeded its jurisdiction u/s 100 CPC.
Finding of the Court:
There is no infirmity in the impugned judgment.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. High Court jurisdiction under Section 100 CPC — Re-appreciation of evidence — Co-ownership as basis for limited relief to protect property from encroachment. (Para 6 , 7 )
3. Co-owner's right to protect joint property — Construction of boundary wall — Absence of adverse effect on neighboring rights. (Para 8 , 9 )
4. Co-owner's entitlement to protect joint property from encroachment via boundary wall — Condition of non-infringement of third-party rights. (Para 8 , 9 )
5. Appeal dismissed — High Court order permitting compound wall construction while excluding encroached portion upheld. (Para 10 )
6. Is a Will required to be strictly proved under Section 68 of the Evidence Act if its execution is not specifically denied?
In the absence of specific denial regarding the execution or existence of a Will, the question of its strict admissibility or proof under the Evidence Act may become insignificant for the purpose of granting limited relief. (Para 9 )
7. Can a co-owner protect property from encroachment even if their exclusive title to a specific portion is not established?
Yes, a co-owner has an undivided share in the property and is entitled to protect it from further encroachment, such as by erecting a boundary wall, even if specific demarcation of shares has not occurred. (Para 8 , 9 )
8. Can a High Court mould reliefs in a second appeal without answering every formulated substantial question of law?
Yes, if an arrangement meets the ends of justice and avoids further litigation without adversely affecting the rights of the opposing party, it may be upheld even if all substantial questions of law are not explicitly answered. (Para 9 )
JUDGMENT
A.M.KHANWILKAR, J.
1. This is third round of proceedings between the parties in relation to property bearing Survey No.2063 at Anchamada Village, Thiruvananthapuram, admeasuring around 79 cents. The father of Respondent No.1 was the owner, who, during his life-time sold 20 cents of the said land to a third party. The remaining 59 cents were purportedly given by the father of Respondent No.1 to him and his brother Achuthan Nair by a registered Will. The present proceedings pertain to the said 59 cents of land bearing Survey No.2063 (for short “suit property”). The Appellants are in occupation of the neighbouring property bearing Survey No.2061 and have constructed a building thereon.
2. Respondent No.1 had filed a suit before the Munsiff Court in the year 1975 being O.S. No.1004 of 1975 against the predecessor of the Appellants in respect of the suit property. That suit, however, was dismissed on 11.11.1977 against which Respondent No.1 preferred an appeal before the District Court but was unsuccessful due to dismissal of the appeal on 29.02.1980. In the intervening period, the predecessor of the Appellants filed a suit for injunction against Respondent No.1 in respect of the suit property, being O.S. No.1069 of 1976. This suit, however, was dismissed on 25.03.1978 by the Munsiff Court at Trivandrum. The predecessor of the Appellants filed an appeal against the said decision before the District Court which, however, was dismissed on 20.03.1981. Thus, both sides were unsuccessful in getting relief of injunction against the other party in their respective suits.
3. Respondent No.1 however, filed a fresh suit (from which the present appeal arises) being O.S. No.547 of 1981 before the Munsiff Court at Trivandrum for relief of mandatory injunction and prohibition against the Appellants. In this suit, it has been asserted by the Respondent No.1 that his father bequeathed 59 cents of the property described in Schedule B to the plaint to him and his brother by way of a registered Will. Thus, asserting title over the 59 cents in Survey No.2063, Respondent No.1 sought a mandatory injunction against the Appellants and also a direction that the Appellants shall remove the portion of the building on the western side of the suit property, being an encroachment made by the Appellants. Respondent No.1 further prayed for reliefs of injunction and declaration that he was entitled to put up a boundary wall to separate the two Survey Nos. namely 2061 and 2063, owned and occupied by the respective parties. Respondent No.1 also sought a prohibitory injunction against the Appellants from entering upon the suit property which was in possession of the Respondent No.1.
4. The Appellants resisted the said suit by filing their written statement. According to the Appellants, Respondent No.1 was not representing his brother Achuthan Nair and the suit for mandatory injunction on the basis of title was bad for non joinder of necessary parties. The Appellants asserted that they were in occupation/possession of Survey No.2061 which had a clear boundary separating the property allegedly owned and occupied by Respondent No.1. Further, the matter in issue in the present suit was already considered in the previous suits filed by the parties and could not be re-agitated once again between the parties. The parties produced evidence in support of their respective claims. After considering the rival contentions and the evidence on record, the Trial Court, by the judgment and decree dated 09.02.1990, was pleased to decree the suit in the following words:
“In the result a mandatory injunction is issued directing the defendants to demolish the portion of their building that abuts on the plaint B Schedule property as seen in Exhibit C1 (a) plan. The defendants are also directed to remove the newly erected bathroom and latrine to fill up the pit as shown in Exhibit C1 (a) plan. In case the defendants will not abbey the injunction within a period of three months fro
