POONNAMMA JAGADAMMA & ORS Vs. NARAYANAN NAIR & ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 5366 of 2017, Judgment Date: May 01, 2017

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5366 OF 2017
(Arising out of SLP (Civil) No.3873 of 2014)

Poonnamma Jagadamma & Others. …. Appellants

Versus

Narayanan Nair & Others. .... Respondents

J U D G M E N T

A.M.KHANWILKAR, J.

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.

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.

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.

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 from today, the plaintiff shall
be entitled to have the same demolished and removed through court in
execution at the expense of the defendants. The defendants are permanently
restrained from trespassing into the plaint B Schedule property, from
demolishing its boundary and from making any construction therein after
complying the mandatory injunction. Plaintiff is allowed to put up
permanent boundary wall on the eastern boundary of plaint B Schedule
property through the C.D. line in Exhibit C1 (b) plan. Exhibits C1 (a) and
C1 (b) plan will form part of the decree. No costs.”

Against this decision, the Appellants preferred an appeal before the
District Judge, Thiruvananthapuram, being Appeal Suit No. 201 of 1990. The
first Appellate Court, on the basis of rival submissions, framed the
following points for consideration:

“(i) Whether the plaintiff is entitled for fixation and putting up of
boundary.

Whether the plaintiff is entitled for a mandatory injunction directing the
defendants from demolishing the part of the building which situates in
Survey No.2063.

Whether the plaintiff is entitled to the prohibitory injunction prayed for.

Whether there is sufficient reason to interfere with the decree of the
lower court.

Reliefs and costs.”

The first Appellate Court allowed the appeal and was pleased to set aside
the judgment and decree passed by the Trial Court. The first Appellate
Court took the view that on the basis of the Will relied upon by the
Respondent No.1- plaintiff, it could be seen that 10 cents out of 59 cents
of the property was bequeathed to Achuthan Nair and the Respondent No.1 –
plaintiff was allotted the balance 49 cents. The first Appellate Court
noted that the said Achuthan Nair was not made party in the suit. The
Appellate Court held that the Will was not probated by the Respondent No.1
– plaintiff. On that analysis, it proceeded to hold that the Respondent
No.1 - plaintiff was not able to substantiate his title over the whole of
the suit property and thus, was not entitled to any relief of mandatory
injunction or prohibitory injunction against the Appellants.

5. Aggrieved by the said decision, Respondent No.1 - plaintiff carried
the matter in second appeal before the High Court of Kerala, being Second
Appeal No.105 of 1998(D). The High Court entertained the second appeal and
framed the following substantial questions of law:

“(i) When a will relied on is not denied or disputed and genuineness is
not questioned is the Will still to be strictly proved under Section 68 of
the Evidence Act?

(ii) Is not the 1st Appellate Court bound to evaluate the entire oral and
documentary evidence in the case?

(iii) When only a portion of the building is abutting into another man’s
property is not enough that mandatory injunction alone is sought for and is
it necessary that recovery of possession of the site should also be
claimed?

(iv) When title and possession of plaintiff is not disputed or denied over
the entire property but is denied only in respect of portion on which a
building is abutting, should not the Court grant a decree declaring title,
possession and injunction in respect of that portion. In a case where there
is no distinction demarcating the boundary between the two properties
should not the relief of fixation of boundary be granted?”

The High Court noticed that the attestors to Ext. A-1 were not alive at the
time of filing of the suit and therefore, could not be examined. The High
Court also noted that Ext. A-1, A-4, A-5, and Book No.III Volume 18 and the
Thumb Impression register were produced before the Trial Court and duly
considered. From the evidence of PW2 relied upon in respect of Ext. A-1
Will, the same was proved. The High Court then noted the contention of the
Respondent No.1 – plaintiff, that the execution of the Will was not
specifically denied by the defendants; and that even if the Will was not
proved, the right of the Respondent No.1 - plaintiff over the suit property
as the co-owner, being one of the sons of the original owner of the
property, was indisputable. For that reason, it was unnecessary to go into
the question of genuineness of the Will. It was open to the co-owner to ask
for a prohibitory injunction and that could not be refused. To that extent,
Respondent No.1 succeeded before the High Court. While dealing with the
issue of proper description of the suit property, the High Court adverted
to the Commissioner’s report and held that since part of the area in the
suit was found to have been trespassed upon but as the Respondent No.1 -
plaintiff had failed to establish his exclusive title over the entire 59
cents including the portion on which stated encroachment was noticed, he
was not entitled to mandatory injunction of removal of encroachment against
the defendants. The High Court observed that 10 cents of the suit land was
bequeathed to the brother of the Respondent No.1 – plaintiff. It was not
demarcated. Further, the decree passed by the Court below had already
become final. The High Court, however, then noted the stand of the
Respondent No.1 - plaintiff that even if his claim regarding title over 59
cents of suit property was not accepted, considering the fact that he was
indisputably a co-owner of suit property, he was entitled to protect the
suit property by erecting the boundary wall so that no further encroachment
or interference from the Appellants-defendants need be countenanced. Moreso
in the present case, the Appellants - defendants were not claiming any
right over the suit property bearing Survey No.2063 owned and occupied by
the Respondent No.1 plaintiff. This contention found favour with the High
Court. The High Court held that to meet the ends of justice in the peculiar
facts of the present case, it would be just and proper that the Respondent
No.1 - plaintiff is allowed to put up a compound wall by leaving aside the
portion of trespassed portion in Survey No.2063 by the Appellants
–defendants; and also leaving some more land so as to avoid further dispute
pertaining to the same. The High Court thus, thought it appropriate to
mould the reliefs to do substantial justice to the parties. The High Court
then outlined the location where the compound wall could be constructed, on
the basis of the plan which had come on record. The relevant portion of the
impugned judgment of the High Court reads thus:
“22. I find that in order to meet the ends of justice, it would be just
and proper that the plaintiff is allowed to put up a compound wall but
leaving that part of the area which was trespassed upon by the defendant
and also leaving out some more land so as to avoid further dispute
pertaining to the same.

23. Point ‘M’ shall be marked four links to the west of point ‘D’ shown
in Ext. C1 (a) plan. Another point ‘Q’ shall be marked on ‘CD’ line at its
middle; that is, 12 links to the south of the point ‘D’. Two perpendicular
lines, one from point ‘M’ towards sought and another from point ‘Q’ towards
west shall be drawn which will meet at point ‘Y’. That plot ‘DMYQD’ shall
be left out to be used and possessed by the defendant. The
plaintiff/appellant is permitted to put up a compound wall along ‘MY’, ‘YQ’
and ‘QC’ lines.

24. In the result, this R.S.A. is disposed of as follows:-

25. Since the prayer for declaration of title was rejected the plaintiff
is not entitled to get the mandatory injunction as sought for and to that
extent the Second Appeal fails. But in order to see that justice is done to
the parties the plaintiff/appellant is permitted to put up a compound wall
along the line ‘MY ‘YQ’ and ‘QC’ mentioned above. The plot ‘DMYQD’ shall be
excluded and that plot shall be used and possessed by the defendant.

The assistance of a Surveyor to assist the Amin shall be ordered for
executing the decree. If necessary, an Advocate Commissioner can also be
appointed by the execution Court to assist the Amin to execute the decree.”

6. This decision has been assailed by the Appellants mainly on the
argument that the High Court exceeded its jurisdiction in exercise of
powers under Section 100 of CPC. The High Court re-appreciated the evidence
on record to reverse the decision of the District Court, which had allowed
the appeal preferred by the Appellants by setting aside the decree passed
by the Trial Court in its entirety and also dismissed the suit filed by the
Respondent No.1- plaintiff. As a matter of fact, the High Court did not
answer the substantial questions of law formulated by it but went on to
carve out an arrangement which it found would meet the ends of justice.
According to the Appellants, even though the High Court affirmed the
finding recorded by the Courts below that the Respondent No.1 - plaintiff
had not substantiated his title and moreso his exclusive possession over
the suit property where the proposed compound wall has been allowed to be
constructed, the question of granting any relief to the Respondent No.1 -
plaintiff did not arise.

7. Respondent No.1 on the other hand contended that the fact that he was
one of the co-owners of the suit property was indisputable. Even if the 10
cents of the suit property bequeathed to Achuthan Nair (his brother) has
not been demarcated, that would make no difference to the co-ownership of
Respondent No.1 over the suit property. On the basis of this claim of co-
ownership, there was nothing wrong in the order passed by the High Court
granting limited relief to Respondent No.1 to erect the compound wall in
the suit property. According to Respondent No.1, it was not the case of
Appellants that the location where the compound wall has been permitted to
be constructed by the High Court was not on the suit property or in any way
affecting the occupation and possession of any neighbouring property
including that of the Appellants bearing Survey No.2061. Respondent No.1
submitted, in that sense, the decision of the High Court was a benign
direction which did not affect the rights of the Appellants in any manner.
In other words, the High Court permitted the Respondent No.1 to do what he
was otherwise entitled to do in law, to put up a compound wall on the suit
property without affecting the rights of any neighbouring property owner.
The Appellants cannot claim any right over that portion of the suit
property on which the compound wall has been allowed to be constructed.
According to Respondent No.1, in the fact situation of the present case,
this Court ought to be loath to interfere with a just and fair order passed
by the High Court and moreso because the same is not adverse to the
Appellants in any manner.

8. Having considered the rival submissions, we find force in the
argument of Respondent No.1 that even if the claim of Respondent No.1
regarding title over the whole of the suit property is answered against
him, that does not necessarily negate his claim of being a co-owner of the
suit property along with his brother. The fact that demarcation of 10 cents
out of the suit property (which has been bequeathed to the brother of
Respondent No.1, Achuthan Nair) under a Will executed by their father has
still not been done, that would not negate the Respondent No.1 from being a
co-owner in the suit property along with his brother and to have undivided
share therein. Being a co-owner of the suit property, there is nothing
wrong if Respondent No.1, with a view to protect the suit property from any
further encroachment, was to construct a compound wall within the portion
of the suit property as specified by the High Court. The limited relief
granted by the High Court to construct such compound wall, is very specific
and in no manner likely to adversely affect the Appellants. Nothing has
been brought to our notice to the contrary. Indeed, the construction of
compound wall must conform to the mandate of municipal laws and other
compliances in that behalf.

9. So long as the compound wall is constructed by the Respondent No.1 on
the portion of suit property over which the Appellants have no right, title
or interest; and by leaving out the portion which has been encroached upon
by the Appellants/ defendants and some more land from such trespassed
portion, the Appellants can have no grievance whatsoever. It is a different
matter that the High Court has not dealt with each of the substantial
questions of law formulated while entertaining the second appeal. As the
arrangement provided by the High Court would meet the ends of justice and
also avoid any further litigation between the parties, it would not be
necessary to deal with all the substantial questions of law. As a matter of
fact, in absence of specific denial about the execution or existence of the
said Will by the Appellants – defendants, the question of examining the
issue of admissibility of that Will pales into insignificance. The High
Court also justly noted that the beneficiary under the Will was not before
the Court. Even for this reason, it would be unnecessary to answer the
substantial questions of law formulated at the instance of the Appellants -
defendants and because the nature of the arrangement predicated by the High
Court is such that it would not affect the rights of the Appellants -
defendants in any manner with regard to the enjoyment of the property owned
or occupied by them bearing Survey No.2061 and including the stated
encroached portion in Survey No.2063. In that sense, there is no subsisting
cause for the Appellants to question the correctness of the Will nor is
there any tangible ground to assail the arrangement specified by the High
Court while disposing of the second appeal filed by Respondent No.1.

10. Accordingly, we find no reason to interfere in the fact situation of
this case. The appeal is, therefore, dismissed with no order as to costs.

...……………………………..J.
(Dipak Misra)

..…..…………………………..J.
(A.M.Khanwilkar)

New Delhi,
Dated: May 1, 2017

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