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Friday, May 26, 2017

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 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.

                                                       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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