RAGHAVAN SASIKUMAR versus PARAMESWARAN NADAR SATHYANANADHAN NADAR KANAKOTTU PADIPPURA VEEDU AND ORS. on 1 August 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 01.02.2018 passed by the High Court of Kerala atErnakulam in Second Appeal No. 39 of 2000 by which the High CourtBhas allowed the said second appeal and has set aside the concurrentfindings recorded by both the Courts below and consequently has decreedthe Original Suit No. 665 of 1988, the original defendant No. 4 haspreferred the present appeal.

2. The facts leading to the present appeal in a nutshell are asCunder:- 2.1 The dispute is with respect to the putting up the boundaries inrespect of the B schedule Items 1 and 2. That plaint A Schedule landoriginally belonged to one Parameswaran Nadar. The original owner -Parameswaran Nadar filed O.S. No. 833 of 1961 before the Court ofDMunsiff, Neyyattinkara, in which his title to and possession over plaint Aschedule land was declared to the extent of 2 acres and 35 cents.Subsequently, the original plaintiffs in the present case filed O.S. No.640of 1970 for recovery of the buildings situated in plaint A schedule therein.At this stage, it is required to be noted that the first plaintiff is the wife ofEthe original owner - Parameswaran Nadar and the plaintiff Nos. 2 to 5are his children. In O.S. No. 640 of 1970, a question of kudikidappuwas raised, which was referred to the Land Tribunal concerned foradjudication. The Land Tribunal, after taking evidence, entered a findingthat the defendants in that suit (defendant Nos. 1 to 3 herein) wereentitled to kudikidappu rights. O.S. No. 640 of 1970 came to beFdismissed. The plaintiffs filed an appeal against rejection of their claimin one of the buildings, which was situated in the plaint C schedule. Thesaid appeal came to be allowed. In execution, the person in occupationof the C schedule was evicted. Later, a compromise was arrived atbetween the parties and the property now shown in C schedule wasGgifted to the son of the defendant in the earlier suit.

2.2 That thereafter the plaintiffs herein filed the present suit beingO.S. No. 665 of 1988 with a prayer to put up the boundary in respect ofthe plaint B schedule Items 1 and 2. It was the case on behalf of theplaintiffs that they have no objection in allotting 10 cents each to thedefendant Nos. 1 and 3 in kudikidappu right and rest of the propertyH

has to be secured by putting up a boundary wall. The defendants filedthe written statement disputing the description of the plaint scheduleproperties. They also contended that they are in possession of propertiesin excess of kudikidappu right and they are legally entitled to possessthe same. It was the case on behalf of the defendants that they haveperfected their title over a property having more than 10 cents in extent.

A Court Commissioner was appointed, who submitted his report -Court Commissioner’s Report (Exts. C1 and C2). On appreciation ofevidence, the learned Trial Court dismissed the suit, which came to beconfirmed by the First Appellate Court.

Feeling aggrieved and dissatisfied with the judgment and decreepassed by the learned Trial Court dismissing the suit and which wasconfirmed by the First Appellate Court, the original plaintiffs filed theSecond Appeal No. 39 of 2000 before the High Court. The appeal wasadmitted on the following substantial questions of law:- “1. When the lower court has found that the defendants have notperfected their title over plaint D schedule by adverse possessionand limitation, should not the lower court grant a decree to theplaintiff allowing the plaintiff to put up boundary to separate plaintD schedule from B and C schedule properties?

2. Is the finding of the lower court dismissing the suit valid on theground that the plaintiff has not prayed for recovery of the propertyfrom the receiver?

3. If the title of the plaintiff over the plaint D schedule property isfound in favour of the plaintiff, can the prayer for putting upboundary be rejected on the ground that the said property is in thepossession of the receiver on behalf of the plaintiff?

4. When the plaintiff has admitted that the defendants are in thepossession of B and C schedule, can the suit be dismissed on theground that defendants have not obtained pattayam for the saidproperties from the Land Tribunal?

5. Can the suit be dismissed on the ground that defendants havenot obtained pattayam from the Land Tribunal?”

2.3 By the impugned judgment and order, the High Court hasallowed the said second appeal and has decreed the suit by upsetting theconcurrent findings recorded by both the Courts below and holding that A

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Adefendant Nos. 1 to 3 cannot have more than 10 cents of land as akudikidappukars and therefore, plaintiffs are entitled to put up theboundary as per the Commissioner’s Plan and Report beyond the excessof 10 cents land.

2.4 Feeling aggrieved and dissatisfied with the impugned judgmentBand order passed by the High Court allowing the second appeal andquashing and setting aside the judgment and decree passed by the learnedTrial Court dismissing the suit and consequently decreeing the suit, originalrespondent No.4 before the High Court has preferred the present appeal.

3. We have heard Shri C.N. Sreekumar, learned Senior AdvocateCappearing on behalf of the appellant and Mr. Jose Abraham, learnedcounsel appearing on behalf of the respondents – appellants before theHigh Court – original plaintiffs.

4. Having heard the learned counsel for the respective partiesand considered the evidence on record, more particularly, the fact that inDthe earlier round of litigation instituted by the original landowner -Parameswaran Nadar – predecessor-in-title of the plaintiffs, being O.S.No. 833 of 1961, he was held to be entitled to plaint A schedule land tothe extent of 2 acres and 35 cents. Therefore, the predecessor-in-title ofthe plaintiffs, was having the title to and possession over the plaint Aschedule land admeasuring 2 acres and 35 cents only. Therefore, to thatEextent only the plaintiffs can protect their possession by putting up theboundary wall/fence and not beyond 2 acres and 35 cents. Therefore,the original plaintiffs can put up the boundary wall/fence within 2 acresand 35 cents. They have no right to put up any boundary wall/fencebeyond 2 acres and 35 cents. If the plaintiffs are permitted to put up theFboundary wall beyond 2 acres and 35 cents, in that case, it would becontrary to the earlier judgment and decree passed in O.S. No. 833 of1961. Also, if the plaintiffs are permitted to put up the boundary wall/fence beyond 2 acres and 35 cents, in that case, it can be said to beconferring title on them beyond 2 acres and 35 cents contrary to thejudgment and decree passed in O.S. No.833 of 1961 in which they wereGheld to be entitled to plaint A schedule land admeasuring 2 acres and 35cents only.

5. Now, so far as the reliance placed upon the Commissioner’sReport, which suggests that the plaintiffs were in possession of 2 acresand 77 cents is concerned, it is to be noted that plaintiffs may be found toH

be in possession of 2 acres and 77 cents. However, any possessionbeyond 2 acres and 35 cents can be said to be unauthorized possession.

6. As observed hereinabove, the plaintiffs can protect theirpossession by putting up the boundary wall/fence to the extent of 2 acresand 35 cents only. By praying to permit the plaintiffs to put up the boundarywall/fence beyond 2 acres and 35 cents, the plaintiffs are asking for thereliefs permitting them to retain the possession of land beyond 2 acresand 35 cents, which otherwise they are not entitled to in view of thespecific findings recorded by the Civil Court in the earlier round of litigationnamely O.S. No. 833 of 1961.

7. From the impugned judgment and order passed by the HighCourt, it appears that what is weighed with the High Court is that thedefendant Nos. 1 to 3 are entitled to only 10 cents as kudikidappukars.However, in a suit praying for putting up a boundary wall/fence filed bythe plaintiffs, the High Court in a second appeal could not have given thefindings that the defendants were entitled to only 10 cents askudikidappukars.

8. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court is unsustainableand the same deserves to be quashed and set aside and is accordinglyquashed and set aside. The judgment and decree passed by the learnedTrial Court confirmed by the First Appellate Court is hereby ordered tobe restored.

Present appeal is accordingly allowed to the aforesaid extent.However, in the facts and circumstances of the case, there shall be noorder as to costs.

Bibhuti Bhushan Bose

Appeal allowed.

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