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2001 Supreme(Ker) 705
High Court of Kerala
S. Marimuthu, J.
Baby Alias Mariamma Paul - Appellant
Versus
Devassy & Ors - Respondent
S.A. No. 651 of 1996
Decided On : 17-04-2001
The main legal point established in the judgment is the application of the principles of continuing wrong and breach, adverse possession, and nuisance to determine the limitation of the suit, its maintainability, and the interference with lower courts' findings.
Headnote:
Limitation - Property Dispute - Indian Limitation Act - S.23, S.100 C.P.C. - The court examined the principles of law on continuing wrong and breach, adverse possession, and nuisance. The court concluded that the suit was barred by limitation as the injury caused by the wrongful act was complete in 1967, and there was no continuing wrong. The court also found that the suit was not maintainable due to lack of cause of action and the appellant's failure to establish boundaries and show diligence in seeking relief. The court declined to interfere with the concurrent findings of the lower courts.
Fact of the Case:
The appellant filed a suit for injunction against the deceased first defendant, alleging obstruction to her property. The deceased first defendant had constructed a hut on puramboke land, blocking the appellant's entry to her property. The suit was resisted on the grounds of adverse possession and lack of cause of action.
Finding of the Court:
The court found that the suit was barred by limitation, not maintainable due to lack of cause of action, and declined to interfere with the lower courts' findings.
Issues: The issues included whether the suit was barred by limitation, whether there was sufficient space for the appellant's egress and ingress, and whether the court could interfere with the concurrent findings of the lower courts.
Ratio Decidendi: The court applied the principles of continuing wrong and breach, adverse possession, and nuisance to determine the limitation of the suit, its maintainability, and the interference with lower courts' findings.
Final Decision: The Second Appeal was dismissed.
S. Marimuthu, J.
1. This appeal is directed questioning the judgment and decree delivered in A. S. No. 101 of 1993 on the file of the 1st Additional Sub Judge, Ernakulam. That appeal was filed against the judgment and decree in O. S. No. 561 of 1985 on the file of the 2nd Additional Munsiff, Ernakulam, Plaintiff is the appellant. In both the courts below the plaintiff was not successful.
2. Appellant as plaintiff filed the above said suit for perpetual injunction restraining the deceased first defendant, one Devassy, from causing any obstruction to the appellant's free egress and ingress to the plaint schedule property and from attempting to trespass into the plaint schedule property and also for a mandatory injunction to remove the obstruction caused for entering the plaint schedule property from the lane through the gate. First defendant died pending appeal and his legal representatives have been brought on record as respondents in this appeal. The case of the appellant in short is that the suit property measuring 8 cents in extent was purchased under Ext. A-2 (copy), dated 17th July 1969 with specific boundaries and it has got pucca compound walls on all sides. There is an iron gate at the east of the southern wall. Deceased first respondent unauthorisedly constructed a hut on the south of the suit property in puramboke land which lies north of the road, blocking the entry of the appellant to the plaint schedule property. Therefore, the above said suit was filed
3. Suit was resisted by the deceased first respondent with the contentions that he started to reside in the southern property from the year 1967 onwards prior to Ext. A-2 sale deed. At that time there was only a fence on the southern boundary of the plaint schedule property. Only after the purchase, the appellant put up the compound walls. She put up the gate in order to trouble the deceased first respondent. Since it is a puramboke land the Corporation alone is entitled to remove the first respondent from the place and he was not causing any obstruction for the appellant's egress and ingress to the plaint schedule property. Hence the suit is liable to be dismissed. In both the courts, as pointed out above, the appellant did not succeed.
4. Mr. N. Subramaniam, learned counsel appearing for the respondents would contend that the suit is barred by limitation, that as the respondents have been in possession of the property from 1967, they have perfected title by adverse possession over the Corporation land, that they are not bound by the boundaries found in Ext. A-2 since they are not parties to the document, etc. He also contended that there is no illegality or infirmity or irregularity in the Judgments of the courts below warranting this Court to interfere with the concurrent findings.
5. Mr. M. R. Rajendran Nair, learned counsel appearing for the appellant, on the other hand, would contend that Ext. A-2 is so clear regarding the boundaries as per which the southern property belongs to the Corporation in which the first respondent has put up the hut unauthorisedly causing nuisance. When unauthorised construction has been put up causing nuisance which is a continuing one and in such circumstance it could not be said that the suit is barred by limitation. And when that be so, the respondents are not entitled to claim title by adverse possession over the Corporation land. There is no other way for the appellant for her egress and ingress to her property and in fact the gate was damaged by the deceased first respondent. Therefore, for both the reliefs, the suit is perfectly maintainable.
6. In view of the above rival submissions of the learned counsel, the statutory and settled propositions of law on these points can be first examined.
7. The Full Bench of the Lahore High Court in Khair Mohd. Khan v. Mt. Jannat A.I.R. 1940 Lahore 359 (F.B.) has held thus:
"In considering whether the particular act complained of constitutes a continuing wrong within the meaning of S.23 fo
