RAGHAVAN SASIKUMARversusPARAMESWARAN NADAR SATHYANANADHAN NADAR KANAKOTTU PADIPPURA VEEDU AND ORS.

830                      [2022]REPORTS
               SUPREME COURT    6 S.C.R. 830                [2022] 6 S.C.R.


A                         RAGHAVAN SASIKUMAR
                                        v.
       PARAMESWARAN NADAR SATHYANANADHAN NADAR
           KANAKOTTU PADIPPURA VEEDU AND ORS.
B                        (Civil Appeal No. 4837 of 2022)
                               AUGUST 01, 2022
               [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
              Suit – Suit filed for putting up a boundary wall/fence on
      land – Trial Court dismissed the suit, which was confirmed by the
C
      First Appellate Court – High Court, however, allowed second appeal
      and decreed the suit by upsetting concurrent findings recorded by
      both the Courts below and holding that defendant Nos. 1 to 3 could
      not have more than 10 cents of land as kudikidappukars and therefore,
      the plaintiffs were entitled to put up the boundary as per the
D     Commissioner’s Plan and Report beyond the excess of 10 cents land
      – Held: In an earlier round of litigation instituted by the original
      landowner-predecessor-in-title of the plaintiffs, he was held to be
      entitled to land to the extent of 2 acres and 35 cents – 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 –
E
      What apparently weighed with the High Court was that defendant
      Nos. 1 to 3 were 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
F     cents as kudikidappukars – Judgment and decree passed by Trial
      Court confirmed by the First Appellate Court, accordingly, restored.
            Allowing the appeal, the Court
            HELD:1. In an earlier round of litigation instituted by the
      original landowner - predecessor-in-title of the plaintiffs, being
G     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, 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.
      [Para 4][834-D]
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                                       830
      RAGHAVAN SASIKUMAR v. PARAMESWARAN NADAR                         831
   SATHYANANADHAN NADAR KANAKOTTU PADIPPURA VEEDU


      2. So far as the reliance placed upon the Commissioner’s         A
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. [Para 5][834-H; 835-A]
                                                                       B
      3. 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
beyond 2 acres and 35 cents, which otherwise they are not entitled     C
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. [Para
6][835-B]
      4. From the impugned judgment and order passed by the
High Court, it appears that what weighed with the High Court is        D
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.          E
The judgment and decree passed by the Trial Court confirmed
by the First Appellate Court is ordered to be restored. [Paras 7,
8][835-C-E]
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.4837 of
2022.                                                                  F
      From the Judgment and Order dated 01.02.2018 of the High Court
of Kerala at Ernakulam in S.A. No. 39 of 2000.
      C.N. Sreekumar, Sr. Adv., Prakash Ranjan Nayak, Advs. for the
Appellant.
                                                                       G
      Jose Abraham, M.P. Srivignesh, Lakshman Raja T., Mithun Kumar
N., Advs. for the Respondents.



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832             SUPREME COURT REPORTS                               [2022] 6 S.C.R.


A            The Judgment of the Court was delivered by
             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
B     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
C     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
      originally belonged to one Parameswaran Nadar. The original owner -
      Parameswaran Nadar filed O.S. No. 833 of 1961 before the Court of
D     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
E     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
F     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
G     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
      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
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      RAGHAVAN SASIKUMAR v. PARAMESWARAN NADAR                                  833
   SATHYANANADHAN NADAR KANAKOTTU PADIPPURA VEEDU
                     [M. R. SHAH, J.]
has to be secured by putting up a boundary wall. The defendants filed           A
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.
                                                                                B
      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           C
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           D
      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 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     E
      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       F
      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?
                                                                                G
      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          H
834             SUPREME COURT REPORTS                            [2022] 6 S.C.R.


A     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.
             2.4 Feeling aggrieved and dissatisfied with the impugned judgment
B     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
C     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
D     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
E     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 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
F     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
G     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
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      RAGHAVAN SASIKUMAR v. PARAMESWARAN NADAR                                     835
   SATHYANANADHAN NADAR KANAKOTTU PADIPPURA VEEDU
                     [M. R. SHAH, J.]
be in possession of 2 acres and 77 cents. However, any possession                  A
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          B
reliefs permitting them to retain the possession of land 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                  C
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.                                                                   D

       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            E
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.
                                                                                   F

Bibhuti Bhushan Bose                                             Appeal allowed.




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