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, both sides were unsuccessful in getting relief of injunction against the other party in their respective suits.
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.
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.
CASE FLOW :
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 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.”
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 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.
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 demarcating the boundary between the two properties should not the relief of fixation of boundary be granted?”
The relevant portion of the SECOND APPEAL before the High Court reads thus:
“24. In the result, this R.S.A. is disposed of as follows:-
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.”
The aggrieved appellant filed Civil Appeal No.5366 of 2017 (Arising out of SLP (Civil) No.3873 of 2014) before the Supreme Court of India
Supreme court dismissed the Appeal by saying :
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.