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SANKAR v. JANARDHANAN - SA No. 39 of 1994  RD-KL 12756 (11 July 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 39 of 1994()
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR, J............................................ S.A.No. 39 OF 1994 ............................................
DATED THIS THE 11th DAY OF JULY, 2007
Plaintiff in O.S.418 of 1987 on the file of Munsiff Court, Wadakkancherry is the appellant. Defendants are respondents. Appellant and respondents 1 and 2 are direct brothers. Third respondent is the wife of second respondent. Appellant instituted the suit seeking a decree for permanent prohibitory injunction in respect of plaint A, B and C schedule properties and for realisation of Rs.500/- being half of the amount realised by second respondent by sale of fishes caught from plaint B schedule tank. Plaint A schedule property is 66.5 cents in Survey No.65 /4 of Kariyannor Village. Plaint B schedule property is half portion of the tank falling in plaint A schedule property. Plaint C schedule property is the fence constructed on the north-eastern boundary of plaint A schedule property. Plaint A schedule property along with the other properties belonging to the family of appellant and respondents 1 and 2 were divided under Ext.A1 partition deed dated 7.9.1971. Under Ext.A1 partition deed, as item No.6, appellant was alloted plaint A schedule property. As item No.23, the remaining western SA 39/1994 2 portion of the said property was alloted to first respondent who was then a minor. Subsequently, first respondent transferred his right in favour of second respondent who in turn settled it in favour of third respondent his wife under Ext.B2 settlement deed. Appellant instituted the suit seeking a decree for injunction contending that respondents are raising claim over plaint A schedule property and obstructing construction of plaint C schedule fence and also contending that they are utilising the fish from the tank without allowing appellant to catch the fish. Respondents in their written statement admitted the right, title and possession of appellant to plaint A schedule property. It was contended that the disputed B schedule tank is not part of the property alloted to appellant and therefore appellant is not entitled to claim any decree for injunction or value of the fish allegedly caught by second respondent. It was also contended that using influence in police, appellant constructed a fence on the north eastern side of plaint A schedule property and appellant has no right over that portion of the property and therefore appellant is not entitled to the decree for injunction. SA 39/1994 3
2. Learned Munsiff on the evidence of PW 1 to 4, DW1 and Exts.A1 to A5 and Exts.B1 and B2 and Ext.C1 and C1(a) granted a decree for permanent prohibitory injunction in respect of plaint A and C schedule properties but refused the decree in respect of plaint B schedule property holding that appellant did not establish his right to plaint B schedule tank. Appellant challenged the decree and judgment before District Court, Thrissur in A.S. 228 of 1991. Respondents filed a cross objection in the appeal contending that trial court should not have granted a decree in respect of plaint A and C schedule properties also. Learned District Judge, on reappreciation of evidence, found that under Ext.A1 item No.6 was alloted to appellant and it does not take in the disputed B schedule tank and therefore finding of learned Munsiff that appellant is not entitled to the decree in respect of plaint B schedule property is correct. Learned District Judge also confirmed the findings of learned Munsiff that appellant established his possession of plaint A schedule property and that plaint C schedule fence is the eastern boundary of plaint A schedule property and appellant established SA 39/1994 4 his possession of plaint C schedule fence also. But holding that appellant did not establish cause of action in respect of plaint A or C schedule property, appellant is not entitled to encroach upon others property and construct a fence, decree granted by the trial court was set aside and suit was dismissed. It is challenged in the second appeal.
3. The appeal was admitted formulating the following substantial questions of law. 1)When specific allotment of shares have been made under Ext.A1 partition deed and the tank was not included as an item alloted to any of the sharers, is it not indicative of the fact that it was intended to be kept in common and if so whether courts below were right in declining the relief to grant a decree in respect of plaint B schedule property. 2)When the trial court and first appellate court found that appellant established possession of plaint A and C schedule property and trial court granted a decree for injunction, whether first appellate court was justified in interfering with the decree.
4. Learned counsel appearing for appellant and respondent SA 39/1994 5 were heard. The argument of the learned counsel appearing for appellant was that when even in the written statement respondent did not dispute the right of appellant over item No.6 of the property alloted to him, which is plaint A schedule property and trial court and first appellate court confirmed that appellant established his possession of that property, first appellate court should not have interfered with the discretion exercised by the trial court holding that there is no cause of action to grant the decree. It was argued that a reading of the written statement filed by respondents establish that they are raising a claim over the property in the possession of the appellant contending that appellant put up the fence encroaching upon their property and as the appellant has established his possession of the property which was upheld by the courts below, appellant is entitled to the decree for injunction. It was also argued that even in Ext.B2 settlement deed executed by second respondent, the assignee of first respondent to whom the western property was alloted under Ext.A1 as item No.23 did not mention existence of the tank in the SA 39/1994 6 property sold and it is to be taken that plaint B schedule tank is not included in the property of respondents and therefore the claim of appellant that he has half right over plaint B schedule tank should have been upheld and a decree should have been granted.
5. Learned counsel appearing for respondents argued that without establishing the identity of plaint schedule property, with reference to Ext.A1 partition deed, appellant is not entitled to a decree as plaint C schedule fence is constructed in a portion of the property not alloted to the appellant under Ext.A1 partition deed. It was therefore argued that there is no reason to interfere with the decree granted by first appellate court.
6. Under Ext.A1, as item No.6, plaint A schedule property was alloted to appellant. As item No.23, the property which lies to the west of plaint A schedule property, which is the western portion of the property divided thereunder, was alloted to first respondent who subsequently transferred it to second respondent, who in turn settled it in favour of his wife under Ext.B2 settlement deed. Neither Ext.B2 settlement deed nor SA 39/1994 7 Ext.A1 partition deed show existence of the tank. Therefore with reference to Ext.A1, the right over plaint B schedule tank cannot be fixed. As the property alloted to appellant and first respondent under Ext.A1 are the eastern and western portion of the property divided thereunder the question whether the tank is included in the property alloted to appellant or first respondent or is in both properties, can be fixed only if the properties are identifed with reference to the division effected under Ext.A1. Though a Commission was taken out and Commissioner submitted report and plan, Commissioner has not identified both the properties in accordance with the description and boundaries given in Ext.A1. Therefore on the evidence it is not possible to hold that the disputed tank is included either in the property alloted to appellant or first respondent, which now belong to third respondent. Therefore appellant is not entitled to a decree in respect of plaint B schedule tank. Even if the argument of appellant that as the tank was not alloted to any of the sharers it is to be taken as kept in common is accepted, being a co-owner appellant is not entitled to a decree for SA 39/1994 8 injunction against other co-owner and therefore courts below rightly refused to grant a decree in respect of plaint B schedule tank.
7. Though plaint A schedule property was not identified with reference to Ext.A1 partition deed, the fact that the entire plaint A schedule property is in possession of appellant was found by trial court as well as by first appellate court. Though respondents contended that appellant has constructed plaint C schedule fence after encroaching upon a portion of the property, the factum of settled possession was admitted. Insuch circumstances, trial court granted a decree in favour of appellant. First appellate court interfered with the decree, confirming the finding of possession on the ground that there is no reasonable apprehension of trespass. As rightly pointed out by learned counsel appearing for appellant, a reading of the written statement shows that respondents have raised a case that appellant is not entitled to reconstruct the fence alleging that he has no right to do so. As settled possession was established and respondents have raised a dispute on the right SA 39/1994 9 of appellant, it cannot be said that there is no reasonable apprehension of trespass or obstruction as alleged by appellant. If so, first appellate court should not have interfered with the discretion rightly exercised by the trial court. The decree and judgment passed by first appellate court with respect to plaint A and C schedule properties are therefore set aside and the decree granted by trial court is restored. The appeal is allowed. The decree and judgment passed by District court in A.S. 228 of 1991 are set aside and the decree granted by Munsiff in O.S.418 of 1987 is restored. No cost.
M.SASIDHARAN NAMBIAR, JUDGElgk/-
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