CHANDRAMATHY Vs. DEVAKEY AMMA

JUDGEMENT

(1.) Plaintiffs in a suit for fixation of boundary and injunction, are the Appellants. Their suit, O.S. No. 1739 of 1997, after trial, was decreed by the learned Munsiff, Ernakulam, negativing the challenges raised by the contesting Respondents/Defendants. However, in the appeal preferred by the Defendants, the decree of the trial court was reversed and the Plaintiffs were non-suited. Aggrieved by that decision, the Plaintiffs have come up with this appeal.

(2.) Subject matter involved in the suit is fifteen cents of land in Sy. No. 248/1/1 in Manakunnam Village in Edappally. Plaintiffs are the wife and children of late Narayanankutty Panicker, who admittedly obtained title over the property under Ext. A1 sale deed. The 1st Defendant is the sister of late Narayanankutty Panicker and Defendants 2 and 3 are the children of the 1st Defendant. The 4th Defendant is the daughter of another sister (deceased) of Narayanankutty Panicker. To the north adjoining the plaint property is the tharawad property comprising tharawad building of late Narayanankutty Panicker and the 1st Defendant. After the death of Narayanankutty Panicker, according to the Plaintiffs, there was obstruction from Defendants 1 to 3 in taking usufructs from the plaint property. Plaintiffs, setting forth a case as above, sought for a decree for fixation of the northern and eastern boundaries of the plaint property and also prohibitory injunction against the Defendants from obstructing them from enjoying the property and also putting up fences on the northern and eastern boundaries of the plaint property. The Defendants filed a joint written statement, in which, admitting that the plaint property originally belonged to Narayanankutty Panicker, the suit claims were resisted contending that late Narayanankutty Panicker had agreed on 30.1.1970 to sell the property to Kumaran Nair, the husband of the 1st Defendant, receiving a sale consideration of Rs. 1,000/-. Pursuant to such agreement, Kumaran Nair was put in possession, and on his death, the Defendants are continuing in possession and enjoyment of the property, according to the Defendants. Kumaran Nair had planted coconut trees and fruit bearing trees and they are now aged more than 25 years and the Defendants have been in enjoyment of the property, was their further case. It was also contended that by virtue of their long continuous, open and uninterrupted possession since 30.7.1970, the Defendants have perfected title by adverse possession and limitation. The tharawad property situate on the northern side is lying contiguously with the plaint property without any boundary, and the whole property is improved and enjoyed by the Defendants, and the Plaintiffs ever since 1970 have not taken usufructs from the property, according to the Defendants. The reliefs canvassed in the suit for fixation of boundary and also for injunction were refuted questioning the entitlement of the Plaintiffs thereof.

(3.) The evidence let in the case consisted of Ext. A1 for the Plaintiffs, and D Ws. 1 to 3 and Ext.B1 series for the Defendants. A report and plan prepared by an Advocate Commissioner, who conducted inspection and measurement over the plaint property were exhibited as Exts.C1 and C1(a). The learned Munsiff, on the materials placed, concluded that the permissive possession claimed by the Defendants under an agreement of sale by the husband of the 1" Defendant with the predecessor of the Plaintiffs, and also the continuous possession over the property ever since such agreement was hardly sufficient to establish that the Defendants have perfected title over such property by adverse possession. During the pendency of the suit, the parties have settled by compromise a suit for partition relating to the tharawad property situate on the north of the plaint property, which was admitted to by the 1st Defendant, examined as DW1, was also taken note of by the learned Munsiff to negative the challenge set up by the Defendants disputing the title of the Plaintiffs over the property. Having regard to the relationship of the parties and also the closeness of the tharawad property adjoining to the plaint property on its northern side wherein the 1st Defendant and her family resided as members of the tharawad, the learned Munsiff concluded that payment of tax over the plaint property by the Defendants and collection of usufructs from that property by the Defendants would no way indicate that such acts were done with animus and hostility challenging the title of late Narayankutty Panicker or his successors, the Plaintiffs. Holding that possession over the property as title holders continued with the Plaintiffs, the trial court relying on the materials collected by the Advocate Commissioner granted a decree allowing the Plaintiffs to put up fences on the northern and eastern boundaries of the plaint property as shown in Ext.C1(a) plan. A decree of perpetual prohibitory injunction was also granted restraining the Defendants from trespassing upon the plaint property and obstructing the Plaintiffs in enjoying the same and putting up fences on the northern and eastern boundaries of that property. In appeal, the learned District Judge, after re-appreciation of the materials, reversed the findings of the learned Munsiff forming a conclusion that the Defendants have established that they are in continuous, uninterrupted possession and enjoyment of the property from 1970 onwards with the animus and hostile intention of treating the property as their own as against the whole world including the true owner. In that view of the matter, the learned District Judge held that the Plaintiffs are not entitled to a decree of fixation of boundary and permanent prohibitory injunction over the suit property against the Defendants. The decree granted by the Trial Court was; set aside and the suit was dismissed by the learned District Judge, allowing the appeal.