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Judgment
K. Babu, J
This Regular Second Appeal arises from the judgment dated 18.01.2003 passed by the Principal Subordinate Judge’s Court, Kochi in A.S.No.94 of 2001. The Appeal Suit arose from the judgment dated 19.5.2001 in O.S.No.302 of 1993 passed by the Additional Munsiff’s Court, Kochi. The defendant is the appellant.
Material facts relevant for the adjudication of this appeal are as follows:-
1. Plaint `A’ schedule property is owned and possessed by plaintiff No.1. Plaintiff No.2 is the owner in possession of plaint `B’ schedule property. Plaint `A’ and `B’ schedule properties, comprised in Survey No.727/A of Fort Kochi Village, are lying contiguously. Plaint `C’ schedule property is a portion of `A’ and `B’ schedule properties upon which the defendant encroached. The defendant has property on the immediate north of plaint `A’ and `B’ schedule properties.
2. According to the plaintiffs, the defendant has no right to put up the northern wall of the properties that belong to the plaintiffs. The right to construct, maintain and protect the northern and eastern walls of the properties is with the plaintiffs as per the usage and custom. Though the plaintiffs resisted, the defendant unauthorisedly put up a wall on the northern boundary of `A’ and `B’ schedule properties. The plaintiffs are entitled to prohibitory and mandatory injunctions to demolish and remove the wall put up by the defendant over `C’ schedule property.
2.3. The defendant resisted the claim of the plaintiffs. According to him, the description and extent of the property mentioned in the schedule are incorrect. The southern boundary wall of the property of the defendant belongs to him. The defendant has the right to construct and maintain his southern boundary wall, which is situated in Survey No.725/1 of Fort Kochi Village. The plaintiffs have no right over the southern boundary wall of the defendant’s property. The custom, usage etc., as pleaded by the plaintiffs, are without any foundation. The defendant has not made any construction unauthorizedly, as pleaded by the plaintiffs.
During the trial, PWs 1 to 3 were examined and Exts.A1 to A5 were marked on the side of the plaintiffs. On the side of the defendant DW1 was examined and Exts.B1 to B6 were marked. Exts.C1 and C2 series were marked as Court exhibits.
The suit was originally decreed in favour of the plaintiffs, which was challenged in A.S.No.27 of 1995 before the Principal Subordinate Judge’s Court, Kochi. The First Appellate Court remanded the suit for fresh disposal with a direction to take out a Commission for the measurement and identification of the properties in dispute. Exts.C2 series report, plan etc. were prepared after the remand of the matter.
The trial Court decreed the suit granting prohibitory and mandatory injunctions against the defendant in respect of the plaint schedule properties. The defendant again challenged the decree of the trial Court in A.S.No.94 of 2001. The First Appellate Court confirmed the decree of the trial Court. The defendant is before this Court under Section 100 of CPC.
After hearing both sides, this Court re-formulated the substantial question of law as follows:-
“Is not Ext.C2(a) plan relied on by the Courts below incomplete as it does not contain the requirements to identify the properties and re-fix the same.”
Heard Sri.Dinesh R Shenoy, the learned counsel for the appellant/defendant and Smt.Vanaja Madhavan, the learned counsel appearing for the respondents/plaintiffs.
The case of the plaintiffs is that they are the absolute owners in possession of `A’ and `B’ schedule properties comprised in Survey No.727/A of Fort Kochi Village. According to the plaintiffs, they have the right to construct and maintain the northern boundary wall of the plaint schedule properties. The plaintiffs pleaded that the defendant who has property on the immediate north of `A’ and `B’ schedule properties encroached upon the property in Survey No.727/A and unauthorizedly constructed a boundary wall. Therefore, the plaintiffs prayed for a prohibitory injunction as well as mandatory injunction to demolish the boundary wall on the north of `A’ & `B’ schedule properties.
The challenge of the defendant is that the boundary wall on the south of his property belongs to him and he has the right to construct and maintain it. According to the defendant, he has not made any unauthorized construction as pleaded. The defendant has raised a contention that the description of the plaint `A’ and `B’ schedule properties is erroneous and misleading.
The plaintiffs have essentially prayed for a mandatory injunction directing the defendant to demolish the boundary wall situated on the north of `A’ and `B’ schedule properties. In such a suit, the plaintiffs must establish the cause of action in respect of the property in question wherefrom the relief of mandatory injunction has been claimed. If a decree is passed in favour of the plaintiffs, the Execution Court must be able to execute the decree for which the property in dispute must be adequately identifiable.
On the question of the identity of the property, the finding of the trial Court reads thus:-
“Even though the correct location of 130 sq. links (encroached property) is not shown in Ext.C2 commissioner’s report ……………. the plaintiffs are entitled to get the removal of construction made in 130 sq. links comprised in Sy.No.727-A which belongs to the plaintiffs. The plaintiffs are entitled to get mandatory injunction for causing removal of unauthorised construction in 130 sq. links of land mentioned in Ext.C2(a) plan. ………………………………… For this purpose, the plaintiffs can rely on Ext.C2(a) plan. The plaintiffs can take out appropriate steps for execution. …. for removal of the unauthorised construction.”
The Courts below relied on Ext.C2(a) plan to grant the relief of mandatory injunction. The Courts below concluded that the defendant encroached upon 130 sq. Links of property in `A' and 'B' schedule properties. But, the Courts below added that the correct location of the property encroached upon could not be identified.
As mentioned above, the Courts below had relied on Ext.C2(a) plan for the purpose of identification of the property and consequently to grant a decree in favour of the plaintiffs. Ext.C2(a) plan is admittedly a field measurement sketch (FM Sketch). The plaint `A' and `B' schedule properties have not been located in Ext.C2(a) plan. The Commissioner has identified a yellow shaded strip of land on the south of the property of the defendant as the property encroached upon. Strangely enough, the Commissioner has located this yellow shaped strip of land in Ext.C2(a) plan without identifying `A' and `B' schedule properties. In the plan, even in respect of the defendant's property, which was identified by the Commissioner, there are only `F-lines’. The plan does not contain `G-line’, `Check-line’, ‘Offset’ measurements etc. ‘Ladder’ is also lacking in the plan. This Court had an opportunity to consider the requirements of a plan which is complete and self-explanatory in Sabu v. Sasi and Others (2022 (2) KHC 4355) wherein this Court held thus:-
“15. The principle of 'Chain surveying' is to divide the field into a framework of triangles. The sides of a triangle are measured directly in the field. Each field is divided into triangles by chaining lines called Diagonal or Check-lines from tri- junction to tri-junction and the Offsets taken from G-line or Check-line to the bend points.
The Amicus Curiae submitted that Ext.C3(a) plan is styled as a field measurement sketch (FM Sketch). An FM Sketch shall contain 'F-line', 'G-line', 'Check-line' and 'Offset' measurements. The 'G-line' measurements, 'Check-line' measurements and 'Offset' are entered in the 'Ladder' in the FM sheet. In addition, the direction of adjoining field boundaries and adjoining survey numbers are entered on the sides of the field. 'Ladder' is necessary to plot the field and verify the area of the field. It is impossible to plot and calculate the area or re-fix the field with the aid of boundary measurements (F-lines) only. To re-fix the field 'G-lines', 'Check-lines', 'F-lines' and 'Offsets' are required. A survey plan becomes complete and self explanatory only when it contains the requirements mentioned above.
Ext. C3(a) plan contains only 'F-lines', which cannot be used to find the area of any of the properties described therein and to identify the boundaries of the properties. Ext. C3(a) plan relied on by the Courts below has not been prepared following the requirements mentioned above. It is impossible to ascertain how 'C' schedule property was identified as 617 sq. links by the surveyor from Ext. C3(a) Survey Plan. 'G-line', 'F-line', and 'Sub-Divisional Lines' are necessary for plotting and re-fixing the boundary of a property and 'Check-line' and 'Ladder' are necessary for computing the area of the property surveyed. Ext. C3(a) plan, which is made part of the decree is not useful to find the area of the property depicted therein and to fix the boundaries of the property.”
I have carefully gone through Ext.C2(a) plan. This plan is not useful to identify the properties in question. The plan is incomplete in all respects. It is not self-explanatory. The plan does not contain the essential requirements for the identification of the properties. The resultant conclusion is that there had not been effectual adjudication of the dispute in the Courts below as identification of the properties was vital as far as the reliefs prayed for are concerned. The trial Court as well as the First Appellate Court ignored the essential requirements of the identification of the properties before granting a decree in respect of the properties in dispute. This has caused prejudice to the defendant.
The Apex Court in Shankararamiah. A v. M.S.Lakshminarayanamoorthi and others [2016 (5) KHC 87], has explained the circumstances under which an order of retrial after remand could be made by the Appellate Court in cases where there had already been a trial. The Apex Court held that an order remanding a proceeding may ordinarily be made when the Trial Court has decided the case on a preliminary point and the Appellate Court reverses the decision of the Trial Court. An order of retrial after remand may also be made in exercise of the inherent jurisdiction of the Court where the Court of appeal is satisfied that there has been no proper trial or no complete or effectual adjudication of the proceeding and the party complaining of the error or omission or irregularity has suffered material prejudice on that account. Such an order may also be made to prevent abuse of the process of Court. A trial de novo, after setting aside a final order passed by the Court of first instance may therefore be made in exceptional circumstances, where there has been no real trial of the proceeding, or where allowing the order to stand would result in abuse of the process of Court, the Apex Court held.
In the present case, there has not been complete or effectual adjudication of the proceedings in so far as identification of the properties in dispute is concerned. The Courts below granted a decree in favour of the plaintiffs ignoring the vital aspects of the identification of the properties even though the question of identification was raised by the defendant at the earliest opportunity. The necessary conclusion is that there has not been a proper trial thereby the appellant/ defendant has suffered material prejudice.
The upshot of the above discussion is that the Original Suit is liable to be remanded to the Court below for trial afresh. The judgments impugned are liable to be set aside.
In the result,
(1) The Regular Second Appeal is allowed by way of remand.
(2) The judgment and decree dated 19.5.2001 in O.S.No.302/1993 on the file of the Additional Munsiff's Court, Kochi and the judgment and decree dated 18.1.2003 in A.S.No.94/2001 on the file of the Principal Subordinate Judge's Court, Kochi are set aside.
(3) The Original Suit is remanded to the trial Court for disposal afresh.
(4) The parties are directed to bear their respective costs.
(5) They shall appear before the trial Court on 17.10.2022.
(6) The Trial Court shall dispose of the Original Suit within a period of three months from 17.10.2022.
The learned counsel for the appellant/defendant has filed I.A.No.1 of 2022 under Order 41 Rule 27 of CPC seeking admission of additional evidence. The learned counsel submitted that the defendant may be given the liberty to produce the documents sought to be admitted, in the trial Court. Registry shall return the certified copies of the title deeds produced from the side of the defendant in I.A.No.1 of 2022 for facilitating him to produce them before the trial Court. Registry shall forthwith transmit the lower court records.