Raghavan Sasikumar Versus Parameswaran Nadar Sathyananadhan Nadar Kanakottu Padippura Veedu and Ors.

Raghavan Sasikumar Versus Parameswaran Nadar Sathyananadhan Nadar Kanakottu Padippura Veedu and Ors.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4837 OF 2022
Raghavan Sasikumar …Appellant(s)
Versus
Parameswaran Nadar
Sathyananadhan Nadar
Kanakottu Padippura Veedu and Ors. …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 01.02.2018 passed by the High Court of Kerala at
Ernakulam in Second Appeal No. 39 of 2000 by which the High Court
has allowed the said second appeal and has set aside the concurrent
findings recorded by both the Courts below and consequently has
decreed the Original Suit No. 665 of 1988, the original defendant No. 4
has preferred the present appeal.
2. The facts leading to the present appeal in a nutshell are as under:-
2.1 The dispute is with respect to the putting up the boundaries in
respect of the B schedule Items 1 and 2. That plaint A Schedule land
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originally belonged to one Parameswaran Nadar. The original owner -
Parameswaran Nadar filed O.S. No. 833 of 1961 before the Court of
Munsiff, Neyyattinkara, in which his title to and possession over plaint A
schedule land was declared to the extent of 2 acres and 35 cents.
Subsequently, the original plaintiffs in the present case filed O.S. No.640
of 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 of
the original owner - Parameswaran Nadar and the plaintiff Nos. 2 to 5
are his children. In O.S. No. 640 of 1970, a question of kudikidappu was
raised, which was referred to the Land Tribunal concerned for
adjudication. The Land Tribunal, after taking evidence, entered a finding
that the defendants in that suit (defendant Nos. 1 to 3 herein) were
entitled to kudikidappu rights. O.S. No. 640 of 1970 came to be
dismissed. The plaintiffs filed an appeal against rejection of their claim in
one of the buildings, which was situated in the plaint C schedule. The
said appeal came to be allowed. In execution, the person in occupation
of the C schedule was evicted. Later, a compromise was arrived at
between the parties and the property now shown in C schedule was
gifted to the son of the defendant in the earlier suit.
2.2 That thereafter the plaintiffs herein filed the present suit being O.S.
No. 665 of 1988 with a prayer to put up the boundary in respect of the
plaint B schedule Items 1 and 2. It was the case on behalf of the
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plaintiffs that they have no objection in allotting 10 cents each to the
defendant Nos. 1 and 3 in kudikidappu right and rest of the property has
to be secured by putting up a boundary wall. The defendants filed the
written statement disputing the description of the plaint schedule
properties. They also contended that they are in possession of
properties in excess of kudikidappu right and they are legally entitled to
possess the same. It was the case on behalf of the defendants that they
have perfected 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 of
evidence, the learned Trial Court dismissed the suit, which came to be
confirmed by the First Appellate Court.
Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned Trial Court dismissing the suit and which was
confirmed by the First Appellate Court, the original plaintiffs filed the
Second Appeal No. 39 of 2000 before the High Court. The appeal
was admitted on the following substantial questions of law:-
“1. When the lower court has found that the defendants
have not perfected their title over plaint D schedule by
adverse possession and limitation, should not the lower
court grant a decree to the plaintiff allowing the plaintiff to
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put up boundary to separate plaint D schedule from B and
C schedule properties?
2. Is the finding of the lower court dismissing the suit valid
on the ground that the plaintiff has not prayed for recovery
of the property from the receiver?
3. If the title of the plaintiff over the plaint D schedule
property is found in favour of the plaintiff, can the prayer
for putting up boundary be rejected on the ground that the
said property is in the possession of the receiver on
behalf of the plaintiff?
4. When the plaintiff has admitted that the defendants are
in the possession of B and C schedule, can the suit be
dismissed on the ground that defendants have not
obtained pattayam for the said properties from the Land
Tribunal?
5. Can the suit be dismissed on the ground that
defendants have not obtained pattayam from the Land
Tribunal?”
2.3 By the impugned judgment and order, the High Court has allowed
the said second appeal and has decreed the suit by upsetting the
concurrent findings recorded by both the Courts below and holding that
defendant Nos. 1 to 3 cannot have more than 10 cents of land as a
kudikidappukars and therefore, plaintiffs are entitled to put up the
boundary as per the Commissioner’s Plan and Report beyond the
excess of 10 cents land.
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2.4 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court allowing the second appeal and
quashing and setting aside the judgment and decree passed by the
learned Trial Court dismissing the suit and consequently decreeing the
suit, original respondent No.4 before the High Court has preferred the
present appeal.
3. We have heard Shri C.N. Sreekumar, learned Senior Advocate
appearing on behalf of the appellant and Mr. Jose Abraham, learned
counsel appearing on behalf of the respondents – appellants before the
High Court – original plaintiffs.
4. Having heard the learned counsel for the respective parties and
considered the evidence on record, more particularly, the fact that in the
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 to
the extent of 2 acres and 35 cents. Therefore, the predecessor-in-title of
the plaintiffs, was having the title to and possession over the plaint A
schedule land admeasuring 2 acres and 35 cents only. Therefore, to
that extent only the plaintiffs can protect their possession by putting up
the boundary wall/fence and not beyond 2 acres and 35 cents.
Therefore, the original plaintiffs can put up the boundary wall/fence
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within 2 acres and 35 cents. They have no right to put up any boundary
wall/fence beyond 2 acres and 35 cents. If the plaintiffs are permitted to
put up the boundary wall beyond 2 acres and 35 cents, in that case, it
would be contrary to the earlier judgment and decree passed in O.S. No.
833 of 1961. 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 be
conferring title on them beyond 2 acres and 35 cents contrary to the
judgment and decree passed in O.S. No.833 of 1961 in which they were
held to be entitled to plaint A schedule land admeasuring 2 acres and 35
cents only.
5. Now, so far as the reliance placed upon the Commissioner’s
Report, which suggests that the plaintiffs were in possession of 2 acres
and 77 cents is concerned, it is to be noted that plaintiffs may be found
to be in possession of 2 acres and 77 cents. However, any possession
beyond 2 acres and 35 cents can be said to be unauthorized
possession.
6. As observed hereinabove, the plaintiffs can protect their
possession by putting up the boundary wall/fence to the extent of 2
acres and 35 cents only. By praying to permit the plaintiffs to put up the
boundary wall/fence beyond 2 acres and 35 cents, the plaintiffs are
asking for the reliefs permitting them to retain the possession of land
6
beyond 2 acres and 35 cents, which otherwise they are not entitled to in
view of the specific findings recorded by the Civil Court in the earlier
round of litigation namely O.S. No. 833 of 1961.
7. From the impugned judgment and order passed by the High Court,
it appears that what is weighed with the High Court is that the defendant
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 by the plaintiffs,
the High Court in a second appeal could not have given the findings that
the defendants were entitled to only 10 cents as kudikidappukars.
8. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court is
unsustainable and the same deserves to be quashed and set aside and
is accordingly quashed and set aside. The judgment and decree passed
by the learned Trial Court confirmed by the First Appellate Court is
hereby ordered to be restored.
Present appeal is accordingly allowed to the aforesaid extent.
However, in the facts and circumstances of the case, there shall be no
order as to costs.
………………………………….J.
 [M.R. SHAH]
NEW DELHI; ………………………………….J.
AUGUST 01, 2022. [B.V. NAGARATHNA]
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