Can prayer to fence property in possession of receiver be allowed? Hc decides

 

The single-judge bench of Justice MR Shah of the Supreme Court was deciding an appeal by defendants against the High Court order by which it 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

Brief Facts of the Case

The dispute in the present case was with respect to putting up boundaries in respect of the B schedule items 1 and 2. The original plaintiff filed before the Court of Munsiff, in which the plaintiff’s title to and possession over plaint A schedule land was declared to the extent of 2 acres and 35%. A question of kudikidappu was raised in the petition, which was referred to the Land Tribunal concerned for adjudication.

The Land Tribunal based on the evidence presented found that the defendants in that suit were entitled to kudikidappu rights. Thereafter the plaintiffs filed the present suit with a prayer to put up the boundary in respect of the plain B scheduled items 1 and 2. On appreciation of evidence and the court commissioner’s report, 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 passed by the learned Trial Court, the original plaintiffs filed the Second Appeal before the High Court. Based on multiple substantial legal questions, the learned court admitted the appeal. And the suit was decreed by granting plaintiffs the right to put up the boundary and holding that defendants cannot have more than 10% of land as kudikidappukars. Thus, setting aside the judgement and decree passed by the learned trial court.

 

The learned counsel appearing on behalf of the plaintiff contended that they have no objection to allotting 10 cents each respectively to the defendants. However, the rest of the property has to be secured by putting up boundary walls. They also further contended that the defendants are in the possession of properties over kudikidappu rights and therefore, the plaintiffs are legally entitled to possess the same.

The learned counsel appearing on behalf of the defendants contended that they have perfected their title over a property having more than 10% in extent.

High Court's Observation 

The court held that the plaintiffs can protect their possession by putting up the boundary wall/fence to the extent of 2 acres and 35% only. However, any possession beyond 2 acres and 35% can be said to be unauthorized possession. As a result, the High Court's judgement and order pertaining to the appeal has been set aside for being unsustainable and lacking sufficient evidence.

Consequently, the learned bench restored the judgment and decree passed by the learned trial court and confirmed by the first appellate court.

Thereby, the appeal was accordingly allowed with no order as to costs.  

 

 

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(With input from news agency language)

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