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             NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5366 OF 2017 (Arising out of SLP (Civil) No.3873 of 2014)

Poonnamma Jagadamma & Others. …. Appellants                          

Versus

Narayanan Nair & Others.                      .... Respondents

J U D G M E N T

A.M.KHANWILKAR, J.

1. This is third round of proceedings between the parties in relation to

property  bearing  Survey  No.2063  at  Anchamada  Village,

Thiruvananthapuram, admeasuring around 79 cents. The father of

Respondent No.1 was the owner, who, during his life-time sold 20

cents of the said land to a third party. The remaining 59 cents were

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purportedly given by the father of Respondent No.1 to him and his

brother Achuthan Nair by a registered Will. The present proceedings

pertain to the said 59 cents of land bearing Survey No.2063 (for

short  “suit  property”).  The  Appellants  are  in  occupation  of  the

neighbouring  property  bearing  Survey  No.2061  and  have

constructed a building thereon.  

2. Respondent No.1 had filed a suit before the Munsiff Court in the

year 1975 being O.S. No.1004 of 1975 against the predecessor of

the Appellants in respect of the suit property. That suit, however,

was  dismissed  on  11.11.1977  against  which  Respondent  No.1

preferred an appeal before the District Court but was unsuccessful

due to dismissal of the appeal on 29.02.1980. In the intervening

period, the predecessor of the Appellants filed a suit for injunction

against Respondent No.1 in respect of the suit property, being O.S.

No.1069 of 1976. This suit, however, was dismissed on 25.03.1978

by  the  Munsiff  Court  at  Trivandrum.  The  predecessor  of  the

Appellants  filed  an  appeal  against  the  said  decision  before  the

District Court which, however, was dismissed on 20.03.1981. Thus,

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both sides were unsuccessful in getting relief of injunction against

the other party in their respective suits.  

3. Respondent No.1 however, filed a fresh suit (from which the present

appeal arises) being O.S. No.547 of 1981 before the Munsiff Court

at  Trivandrum for  relief  of  mandatory injunction and prohibition

against  the Appellants.  In this  suit,  it  has been asserted by the

Respondent  No.1  that  his  father  bequeathed  59  cents  of  the

property  described  in  Schedule  B  to  the  plaint  to  him  and  his

brother by way of a registered Will. Thus, asserting title over the 59

cents  in  Survey  No.2063,  Respondent  No.1  sought  a  mandatory

injunction  against  the  Appellants  and  also  a  direction  that  the

Appellants shall remove the portion of the building on the western

side  of  the  suit  property,  being  an  encroachment  made  by  the

Appellants. Respondent No.1 further prayed for reliefs of injunction

and declaration that he was entitled to put up a boundary wall to

separate the two Survey Nos. namely 2061 and 2063, owned and

occupied by the respective parties. Respondent No.1 also sought a

prohibitory  injunction against  the Appellants from entering upon

the suit property which was in possession of the Respondent No.1.

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4. The  Appellants  resisted  the  said  suit  by  filing  their  written

statement. According to the Appellants, Respondent No.1 was not

representing his brother Achuthan Nair and the suit for mandatory

injunction on the basis of title was bad for non joinder of necessary

parties.  The  Appellants  asserted  that  they  were  in

occupation/possession  of  Survey  No.2061  which  had  a  clear

boundary separating the property allegedly owned and occupied by

Respondent No.1. Further, the matter in issue in the present suit

was already considered in the previous suits filed by the parties and

could not be re-agitated once again between the parties. The parties

produced  evidence  in  support  of  their  respective  claims.  After

considering the rival contentions and the evidence on record, the

Trial  Court,  by the  judgment  and decree dated 09.02.1990,  was

pleased to decree the suit in the following words:

“In the result  a mandatory injunction is issued directing the defendants to demolish the portion of their building that abuts on the plaint B Schedule property as seen in Exhibit  C1 (a) plan. The defendants are also directed to remove the newly erected bathroom and latrine to  fill  up  the pit  as  shown in Exhibit C1 (a) plan. In case the defendants will not abbey the injunction  within  a  period  of  three  months  from  today,  the plaintiff  shall  be  entitled  to  have  the same demolished and removed  through  court  in  execution  at  the  expense  of  the defendants. The defendants are permanently restrained from trespassing  into  the  plaint  B  Schedule  property,  from demolishing its boundary and from making any construction

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therein after complying the mandatory injunction.  Plaintiff  is allowed to put  up permanent boundary wall  on the eastern boundary of plaint B Schedule property through the C.D. line in Exhibit C1 (b) plan. Exhibits C1 (a) and C1 (b) plan will form part of the decree. No costs.”     

5. Against this decision, the Appellants preferred an appeal before

the District Judge, Thiruvananthapuram, being Appeal Suit No.

201 of  1990.  The  first  Appellate  Court,  on  the  basis  of  rival

submissions, framed the following points for consideration:

“(i) Whether the plaintiff is entitled for fixation and putting up of boundary.  

(i) Whether the plaintiff is entitled for a mandatory  injunction  directing  the defendants  from  demolishing  the part of the building which situates in Survey No.2063.  

(ii) Whether the plaintiff is entitled to the prohibitory injunction prayed for.  

(iii) Whether there is sufficient reason to interfere with the decree of the lower court.  

(iv) Reliefs and costs.”   

The first Appellate Court allowed the appeal and was pleased to set

aside the judgment and decree passed by the Trial Court. The first

Appellate Court took the view that on the basis of the Will relied

upon by the Respondent No.1- plaintiff,  it could be seen that 10

cents out of 59 cents of the property was bequeathed to Achuthan

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Nair and the Respondent No.1 – plaintiff was allotted the balance 49

cents. The first Appellate Court noted that the said Achuthan Nair

was not made party in the suit. The Appellate Court held that the

Will was not probated by the Respondent No.1 – plaintiff. On that

analysis, it proceeded to hold that the Respondent No.1 - plaintiff

was not  able  to substantiate  his  title  over  the  whole  of  the suit

property  and  thus,  was  not  entitled  to  any  relief  of  mandatory

injunction or prohibitory injunction against the Appellants.

5. Aggrieved  by  the  said  decision,  Respondent  No.1  -  plaintiff

carried the matter in second appeal before the High Court of Kerala,

being Second Appeal No.105 of 1998(D). The High Court entertained

the second appeal and framed the following substantial questions of

law: “(i) When  a  will  relied  on  is  not  denied  or  disputed  and genuineness  is  not  questioned  is  the  Will  still  to  be  strictly proved under Section 68 of the Evidence Act? (ii) Is not the 1st Appellate Court bound to evaluate the entire oral and documentary evidence in the case? (iii) When only a portion of the building is abutting into another man’s property is not enough that mandatory injunction alone is sought for and is it necessary that recovery of possession of the site should also be claimed? (iv) When title and possession of plaintiff is not disputed or denied over the entire property but is denied only in respect of portion on which a building is abutting, should not the Court grant  a  decree  declaring  title,  possession  and  injunction  in respect of that portion. In a case where there is no distinction

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demarcating the boundary between the two properties should not the relief of fixation of boundary be granted?”

The High Court noticed that the attestors to Ext. A-1 were not alive

at the time of filing of the suit and therefore, could not be examined.

The High Court also noted that Ext. A-1, A-4, A-5, and Book No.III

Volume  18  and  the  Thumb  Impression  register  were  produced

before the Trial Court and duly considered. From the evidence of

PW2 relied upon in respect of Ext. A-1 Will, the same was proved.

The High Court then noted the contention of the Respondent No.1 –

plaintiff, that the execution of the Will was not specifically denied by

the defendants; and that even if the Will was not proved, the right of

the  Respondent  No.1  -  plaintiff  over  the  suit  property  as  the

co-owner,  being  one  of  the  sons  of  the  original  owner  of  the

property, was indisputable. For that reason, it was unnecessary to

go into the question of genuineness of the Will. It was open to the

co-owner to ask for a prohibitory injunction and that could not be

refused. To that extent, Respondent No.1 succeeded before the High

Court. While dealing with the issue of proper description of the suit

property, the High Court adverted to the Commissioner’s report and

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held that since part of the area in the suit was found to have been

trespassed upon but as the Respondent No.1 - plaintiff had failed to

establish his exclusive title over the entire 59 cents including the

portion  on  which  stated  encroachment  was  noticed,  he  was  not

entitled  to  mandatory  injunction  of  removal  of  encroachment

against the defendants. The High Court observed that 10 cents of

the suit land was bequeathed to the brother of the Respondent No.1

– plaintiff. It was not demarcated. Further, the decree passed by the

Court below had already become final. The High Court, however,

then noted the stand of the Respondent No.1 - plaintiff that even if

his  claim regarding  title  over  59  cents  of  suit  property  was  not

accepted, considering the fact that he was indisputably a co-owner

of  suit  property,  he  was entitled  to  protect  the  suit  property  by

erecting  the  boundary  wall  so  that  no  further  encroachment  or

interference from the Appellants-defendants need be countenanced.

Moreso in the present case, the Appellants - defendants were not

claiming any right over the suit property bearing Survey No.2063

owned  and  occupied  by  the  Respondent  No.1  plaintiff.  This

contention found favour with the High Court. The High Court held

that to meet the ends of justice in the peculiar facts of the present

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case,  it  would  be  just  and  proper  that  the  Respondent  No.1  -

plaintiff is allowed to put up a compound wall by leaving aside the

portion of trespassed portion in Survey No.2063 by the Appellants

–defendants; and also leaving some more land so as to avoid further

dispute pertaining to the same. The High Court thus, thought it

appropriate  to  mould  the  reliefs  to  do  substantial  justice  to  the

parties.  The  High  Court  then  outlined  the  location  where  the

compound wall could be constructed, on the basis of the plan which

had  come  on  record.  The  relevant  portion  of  the  impugned

judgment of the High Court reads thus:

“22. I find that in order to meet the ends of justice, it would be just  and  proper  that  the  plaintiff  is  allowed  to  put  up  a compound wall  but leaving that part  of the area which was trespassed upon by the defendant and also leaving out some more  land  so  as  to  avoid  further  dispute  pertaining  to  the same.    23. Point ‘M’ shall be marked four links to the west of point ‘D’  shown  in  Ext.  C1  (a)  plan.  Another  point  ‘Q’  shall  be marked on ‘CD’ line at its middle; that is, 12 links to the south of  the point ‘D’.  Two perpendicular lines,  one from point ‘M’ towards sought and another from point ‘Q’ towards west shall be drawn which will meet at point ‘Y’. That plot ‘DMYQD’ shall be left out to be used and possessed by the defendant. The plaintiff/appellant  is  permitted  to  put  up  a  compound  wall along ‘MY’, ‘YQ’ and ‘QC’ lines.  

24. In the result, this R.S.A. is disposed of as follows:-

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25. Since the prayer for declaration of title was rejected the plaintiff  is  not  entitled  to  get  the  mandatory  injunction  as sought for and to that extent the Second Appeal fails. But in order  to  see  that  justice  is  done  to  the  parties  the plaintiff/appellant  is  permitted  to  put  up  a  compound  wall along the line ‘MY ‘YQ’ and ‘QC’ mentioned above. The plot ‘DMYQD’ shall be excluded and that plot shall be used and possessed by the defendant.  

The  assistance  of  a  Surveyor  to  assist  the  Amin  shall  be ordered for  executing  the decree.  If  necessary,  an Advocate Commissioner can also be appointed by the execution Court to assist the Amin to execute the decree.”  

6. This decision has been assailed by the Appellants mainly on

the  argument  that  the  High  Court  exceeded  its  jurisdiction  in

exercise  of  powers  under  Section  100  of  CPC.  The  High  Court

re-appreciated the evidence on record to reverse the decision of the

District  Court,  which  had  allowed  the  appeal  preferred  by  the

Appellants by setting aside the decree passed by the Trial Court in

its  entirety  and also  dismissed the  suit  filed  by  the  Respondent

No.1- plaintiff. As a matter of fact, the High Court did not answer

the substantial questions of law formulated by it but went on to

carve out an arrangement which it found would meet the ends of

justice. According to the Appellants, even though the High Court

affirmed  the  finding  recorded  by  the  Courts  below  that  the

Respondent  No.1  -  plaintiff  had  not  substantiated  his  title  and

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moreso his exclusive possession over the suit property where the

proposed compound wall has been allowed to be constructed, the

question of granting any relief to the Respondent No.1 - plaintiff did

not arise.

7. Respondent No.1 on the other hand contended that the fact

that  he  was  one  of  the  co-owners  of  the  suit  property  was

indisputable. Even if the 10 cents of the suit property bequeathed

to Achuthan Nair (his brother) has not been demarcated, that would

make no difference to the co-ownership of Respondent No.1 over the

suit property. On the basis of this claim of co-ownership, there was

nothing  wrong  in  the  order  passed  by  the  High  Court  granting

limited relief to Respondent No.1 to erect the compound wall in the

suit property. According to Respondent No.1, it was not the case of

Appellants  that  the  location where  the  compound wall  has  been

permitted to be constructed by the High Court was not on the suit

property or in any way affecting the occupation and possession of

any neighbouring property including that of the Appellants bearing

Survey  No.2061.  Respondent  No.1  submitted,  in  that  sense,  the

decision of the High Court was a benign direction which did not

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affect the rights of the Appellants in any manner. In other words,

the High Court permitted the Respondent No.1 to do what he was

otherwise entitled to do in law, to put up a compound wall on the

suit  property  without  affecting  the  rights  of  any  neighbouring

property owner. The Appellants cannot claim any right over that

portion of the suit property on which the compound wall has been

allowed to be constructed. According to Respondent No.1, in the

fact situation of the present case, this Court ought to be loath to

interfere with a just and fair order passed by the High Court and

moreso because the same is not adverse to the Appellants in any

manner.  

8. Having considered the rival submissions, we find force in the

argument of Respondent No.1 that even if the claim of Respondent

No.1 regarding title over the whole of the suit property is answered

against him, that does not necessarily negate his claim of being a

co-owner of the suit property along with his brother. The fact that

demarcation of 10 cents out of the suit property (which has been

bequeathed  to  the  brother  of  Respondent  No.1,  Achuthan  Nair)

under a Will executed by their father has still not been done, that

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would not negate the Respondent No.1 from being a co-owner in the

suit property along with his brother and to have undivided share

therein.  Being  a  co-owner  of  the  suit  property,  there  is  nothing

wrong if Respondent No.1, with a view to protect the suit property

from any further encroachment, was to construct a compound wall

within  the  portion of  the  suit  property  as  specified  by  the  High

Court.  The limited relief  granted by the High Court  to construct

such compound wall,  is very specific and in no manner likely to

adversely affect the Appellants.  Nothing has been brought to our

notice to the contrary. Indeed, the construction of compound wall

must  conform  to  the  mandate  of  municipal  laws  and  other

compliances in that behalf.  

9. So  long  as  the  compound  wall  is  constructed  by  the

Respondent  No.1  on the  portion of  suit  property  over  which the

Appellants have no right, title or interest; and by leaving out the

portion  which  has  been  encroached  upon  by  the  Appellants/

defendants and some more land from such trespassed portion, the

Appellants  can  have  no  grievance  whatsoever.  It  is  a  different

matter  that  the  High  Court  has  not  dealt  with  each  of  the

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substantial  questions  of  law  formulated  while  entertaining  the

second  appeal.  As  the  arrangement  provided  by  the  High  Court

would meet the ends of justice and also avoid any further litigation

between the parties, it would not be necessary to deal with all the

substantial  questions  of  law.  As  a  matter  of  fact,  in  absence  of

specific denial about the execution or existence of the said Will by

the Appellants – defendants, the question of examining the issue of

admissibility of that Will pales into insignificance. The High Court

also justly noted that the beneficiary under the Will was not before

the Court. Even for this reason, it would be unnecessary to answer

the substantial questions of law formulated at the instance of the

Appellants - defendants and because the nature of the arrangement

predicated by the High Court is such that it would not affect the

rights of the Appellants - defendants in any manner with regard to

the enjoyment of the property owned or occupied by them bearing

Survey  No.2061  and  including  the  stated  encroached  portion  in

Survey No.2063. In that sense, there is no subsisting cause for the

Appellants to question the correctness of the Will nor is there any

tangible  ground to  assail  the  arrangement  specified  by  the  High

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Court  while  disposing  of  the  second appeal  filed  by  Respondent

No.1.  

10. Accordingly, we find no reason to interfere in the fact situation

of this case. The appeal is, therefore, dismissed with no order as to

costs.  

...……………………………..J.         (Dipak Misra)

                                       ..…..…………………………..J. (A.M.Khanwilkar)

New Delhi, Dated: May 1, 2017