Raghavan Sasikumar vs Parameswaran Nadar … on 1 August, 2022


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Supreme Court of India

Raghavan Sasikumar vs Parameswaran Nadar … on 1 August, 2022

Author: M.R. Shah

Bench: M.R. Shah, B.V. Nagarathna

                                                                             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)


                                               JUDGMENT

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
Signature Not Verified

Digitally signed by R
Natarajan
Date: 2022.08.01
17:10:38 IST
Reason:

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

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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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