Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 1132

IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. BABU, J.
Susi W/o Kunjuparambil Xavier – Appellant
Versus
Sujathan S/o Apu – Respondent
R.S.A. No. 1096 of 2014
Decided On : 01-11-2021

Advocates:
Advocate Appeared:
For the Appellant : Sri. M. Sasindran.
For the Respondent: Sri. K.S. Bharathan.

Point of Law: A suit for fixation of boundary cannot be a shortcut or substitute for recovery of possession and that the remedy if any, of the plaintiff was to sue for recovery of possession on the strength of title besides, seeking fixation of the boundary.

Headnote:
Suit for fixation of boundary and consequential injunction - Fixation of boundary - Possession - Trespassed upon plaint schedule property - Order or decreed - Second Appeal - Whether plaintiff is entitled to get the boundary of the plaint schedule property fixed in accordance with plan, wherein disputed strip of land is identified in green colour - Did Court below misconstrue evidence while recording a finding that defendants were in possession of disputed strip of land - Has not lower appellate court erred in holding that a decree for fixation of boundary could not be granted without seeking recovery of possession of property which was found to be so in course of proceedings and only because of lack of clear boundaries for property - Is appellate court justified in dismissing suit for want of recovery of possession especially when disputed land is a narrow strip of land - Plaintiff instituted suit for fixation of boundary and consequential injunction against defendants in respect of 16½ cents of property in Survey, plaintiff acquired title and possession of plaint schedule property under sale deed - Property of defendants lies on the immediate south and west of plaint schedule property - Defendants attempted to encroach upon plaint schedule property on some portions.
Finding of the Court:
The term “possession” as applied to the property has been given many different meanings both in common speech and in legal terminology - It cannot be held that defendants, at any rate, were in settled possession of disputed narrow strip of land, which lies along western boundary of plaint schedule property. Defendants have not succeeded in establishing that they have perfected right over narrow strip of land by adverse possession thereof over required statutory period - Admittedly, plaintiff acquired title over 16.50 cents of land in Survey No. 762/4. Defendants acquired title over 16 cents of land in same survey number, which is lying on immediate south and west of plaint schedule property. Appellate Court relying on plan, held that defendants are in possession of 16.285 cents of land and plaintiff is in possession of 16.215 cents of land. The extent coming to 0.285 cents, located in plan in green shade, is disputed strip of land - There is no evidence to show that plaintiff has been dispossessed by defendants from disputed land. Defendants failed to establish any right over narrow strip of land, which is lying along western boundary of plaint schedule property - Plaintiff is entitled to fixation of boundary as prayed for in plaint.
Result: Second Appeal is allowed.

Judgement Key Points

Key Points: - The First Appellate Court erred in holding that a decree for fixation of boundary could not be granted without seeking recovery of possession, as the specific facts of the case (dispute over a narrow strip of land) made that rule inapplicable. (!) (!) - The term "possession" is ambiguous; in this context, it cannot be concluded that the defendants were in "settled possession" of the disputed narrow strip of land along the western boundary of the plaint schedule property. (!)

How to determine if a suit for fixation of boundary can be granted without a prayer for recovery of possession when the disputed land is a narrow strip?

What is the correct interpretation of "possession" when applied to a narrow strip of land at the boundary of two properties?

What are the rights of a plaintiff who has proven title to a property but is faced with a claim that a narrow strip at the boundary is in the defendant's possession?

JUDGMENT :

K. BABU, J.

1. This Regular Second Appeal arises from the judgment dated 07.01.2014 in A.S. No. 37/2011 of the Principal Subordinate Judge's Court, Irinjalakkuda, which set aside the judgment dated 25.02.2011 in O.S. No. 741/2001 passed by the Principal Munsiff, Irinjalakkuda.

2. The plaintiff is the appellant.

3. The brief facts giving rise to this appeal are as follows:

3.1. The plaintiff instituted the suit for fixation of boundary and consequential injunction against the defendants in respect of 16½ cents of property in Survey No. 762/4 of Poomangalam Village. The plaintiff acquired title and possession of the plaint schedule property under sale-deed No. 2762/1992. The property of the defendants lies on the immediate south and west of the plaint schedule property. At some portions, the plaint schedule property is lying higher than the defendants' property. The defendants attempted to encroach upon the plaint schedule property on some portions. The defendants also attempted to cut and remove trees standing in the plaint schedule property. The plaintiff prevented the defendants from cutting and removing the trees. The plaintiff is entitled to fixation of the boundary of the plaint schedule property and for a permanent prohibitory injunction against the defendants from trespassing into the plaint schedule property.

4. The defendants resisted the case of the plaintiff. The trees standing on the southern side of the plaintiff's property were in a dangerous position, and the same were about to fall over the tarwad building of the defendants. The plaintiff does not have right over 16½ cents of property. The plaintiff trespassed upon the property of the defendants on its southern and eastern boundaries. There are definite boundaries on the southern and eastern sides of the plaint schedule property and the same was destroyed by the plaintiff and her husband.

5. The defendants also raised a counterclaim seeking recovery of possession of a portion of the property owned by them, describing the same as ‘B’ schedule property, and for a consequential injunction.

6. The evidence, in this case, consists of the oral evidence of PWs. 1 and 2 and DWs. 1 and 2. Exhibits A1 to A9 were marked on the side of the plaintiff and Exts.B1 to B4 were marked on the side of the defendants. Exhibits C1 to C3 series also were marked as Court Exhibits.

7. The Trial Court decreed the suit and granted a decree for fixation of the boundary of the plaint schedule property in accordance with Ext.C3(a) plan. The Trial Court also granted relief of permanent prohibitory injunction in favour of the plaintiff restraining the defendants and their men from trespassing upon the plaint schedule property and from annexing any portion of the same. The counterclaim preferred from the side of the defendants was dismissed by the Trial Court.

8. The defendants challenged the decree and judgment passed by the Trial Court by filing A.S. No. 37/2011. The First Appellate Court held that the Trial Court rightly found that the boundary has to be fixed to the plaint schedule property as prayed for. The First Appellate Court further held that the defendants are in possession of 0.285 cents of property of the plaintiff. The First Appellate Court relying on Anjil Vellachi vs. Mamuni Bhaskaran, 2009 (4) KLT SN 6 (Case No. 6), held that as there was no specific prayer for recovery of possession in the plaint, the remedy for fixation of the boundary cannot be granted. The First Appellate Court reversed the judgment and decree passed by the Trial Court, and the suit, as well as the counterclaim, were dismissed.

9. On 27.03.2015, this Court admitted this Regular Second Appeal on the following substantial questions of law:

(1) Has not the lower appellate court erred in holding that a decree for fixation of boundary could not be granted without seeking recovery of possession of the property which was found to be so in the course of proceedings and only because of the lack of clear boundaries fo

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