GOPALANKUTTY NAIR AND ORS. versus KUNHIRAMA THARAKAN AND ORS.

Citation: [2000] 2 S.C.R. 103 · Decided: 03-03-2000 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Appeal(s) allowed

Judgment (excerpt)

,A. 
GOPALANKUTTY NAIR AND ORS. 
v. 
KUNHIRAMA THARAKAN AND ORS. 
MARCH 3, 2000 
[S. SAGHIR AHMAD AND D.P. MOHAPATRA, JJ.] 
Constitution of India, 1950-Article 136-Inteiference-Remittance of 
matter to the trial court-When necessary-Question arose whether the suit 
land as alleged to have been trespassed upon by the first respondent was a 
part of the common bund-This question covered by one of the issues framed 
by the trial court-The trial court and the High Court did not decide this 
point-But the High Court, to put an end to the controversy between the 
parties over the common bund, adopted a pro-active role and directed 
division of the bund between the parties-Such pro-active role is not 
sustainable as it is not based on the case of the parties or with the sanction 
of law-Held, on facts that the matter should be remitted to the trial court 
for deciding the question. 
The dispute arose with regard to a bund (Varamba) situated in the 
survey described in the Schedule 'B' of the plaint. The land on the eastern 
side of the bund was of the appellants and on the western side •was of the 
first respondent. 
The appellants filed a suit for declaration of title to the bund situated 
in the survey and also for recovery of possession of the portion allegedly 
trespassed upon by the first respondent. They further claimed that the 
appellant themselves and t)leir predecessor-in-interest had been in exclu-
sive enjoyment of the properties allotted in their favour in a decree includ-
ing the properties in schedule B of the plaint. One 'S', predecessor of 
the first respondent, having trespassed on the portion of the bund of the 
appellants, the appellants filed a suit. During the pendency of the suit 
a compromise was entered between the parties and 'S' accepting the 
position that the bund in the survey belonged to the appellants vacated the 
portion encroached by him. But subsequently 'S' executed a sale deed in 
favour of the first respondent and alienated certain properties included in 
the survey. Thereafter, the first respondent trespassed upon a portion of 
the bund. 
103 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
104 
SUPREME COURT REPORTS 
[2000] 2 S.C.R. 
The question whether the suit land alleged to have been trespassed 
upon by the first respondent was a part of the common bond (thedaya 
varamba) situated in the survey was covered by one of the issues framed 
by the trial court. The trial court decreed the suit holding that the bond in 
a survey is the common bond and there is trespass over the plaint 'B' 
Schedule property but the alleged trespass as stated in the plaint is not 
proved in the course of the discussion. The High 'court in first appeal set 
aside the decree passed by the trial court. In the second appeal High Court 
set aside the decision of the first appellate court and disposed of the matter 
directing division of the bond and allotment of portions of the bond to both 
the parties. Aggrieved by the High Court judgment appellants preferred 
the present appeal. 
On behalf of the appellants it was contended that the common bond 
in the survey was to be maintained as a bond for the benefit of both the 
parties. Therefo~e, the High Court should not have directed division of the 
bond and allotment of portions of the same to the parties. 
Allowing the appeal, this Court 
HELD : 1.1. The question whether the suit land as alleged to have 
been trespassed upon by the first defendant was a part of the commop 
bond (thedaya varamba) was covered by one of the issues framed by the 
trial court. But the trial court and High Court did not decide the point. 
The High Court, to put an end to the controversy between the parties over 
the common bond, adopted a pro-active move directing division of the 
bond between the parties so as to avert future disputes. Such a course is 
neither based on the case of the parties, nor with the sanction of law, thus is 
clearly unsustainable. Therefore, on facts the case should be remitted to 
the trial court for considering the question whether the suit land which as 
alleged by the plaintiffs has been encroached upon by the first defendant 
and of which recovery of possession is sought, was a part of the common 
bond. [109-F; 110-C] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1933 of 2000. 
From the Judgment and Order dated 29.5.1998 of the Kerala High 
Court in S.A. No. 601189. 
H 
T.L. Vishwanatha and Subramonium Prasad for the Appellants. 
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GOPALANKUTIY

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