1. This appeal has been preferred under Section 100 r/w Order XLII Rule 1 of Civil Procedure Code by the respondent in A.S No.169 of 2009 on the file of the II Additional District Judge, Kollam, who is the plaintiff in OS.No.184 of 2004 on the file of the Munsiff Court, Paravoor, against the impugned judgment of the First Appellate Court, partly allowing the appeal.

2. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.

3. The plaintiff is the younger brother of the defendant. Both of them obtained properties from their father. The plaint schedule property having an extent of 14.5 cents situates on the eastern side of the defendant's property, which he obtained as per Exhibit A1 assignment deed dated 2.4.1979. During the life time of their father, no well defined and demarcating boundary separating those properties was put up. While so, in the year 1989, the defendant constructed a residential building in his property. In 2004, the plaintiff filed the present suit for fixation of the western boundary of his property and for consequential injunction, as his attempt to measure the property for constructing a compound wall was obstructed and the existing survey stones were removed by the defendant. When the property was measured, it was found that a portion of the building having a width of 1.6 meters was encroaching into the plaint schedule property. According to the plaintiff, he was not aware of the above encroachment, which the defendant denied. According to the defendant, the building was constructed with the consent and acquiescence of the plaintiff. Application for incorporating the prayer for recovery of possession and mandatory injunction in respect of the encroached portion of the residential building filed at the belated stage was dismissed by the trial court. Even then, the trial court decreed the suit, allowing the plaintiff to put up the western boundary of the plaint schedule property and directed the defendant to demolish the encroached portion of his building, after moulding the relief. The trial court further ordered that, in case the defendant fails to demolish the encroached portion of the building, the plaintiff could get it demolished through the process of the court and to realise the expenses from the defendant and his assets. The defendant was also restrained from trespassing into the plaint schedule property, by a permanent prohibitory injunction.

4. In appeal, the First Appellate Court found that the defendant constructed the building with the consent of the plaintiff and hence modified the decree passed by the trial court. The relief granted to demolish the encroached portion of the building was declined and the boundary of the plaint schedule property was fixed at a distance of 2 feet away from the building.

5. At the time of admission, this Court has formulated the following substantial questions of law for consideration:

“(1) Is the 1st Appellate Court is justified in finding fault with the appellant/plaintiff, holding that he failed to amend the suit for recovery of possession and mandatory injunction when the fact remains that amendment application seeking recovery of possession and mandatory injunction filed by the appellant/plaintiff had been dismissed by the Munsiff's Court”

6. Heard both sides on the above substantial question of law, in detail.

7. One of the reasons stated by the First Appellate Court to modify the decree of the trial court is that the suit was only for fixation of boundary and for injunction and there was no prayer for recovery of possession or mandatory injunction. It is true that in the plaint there was no prayer for recovery of possession or mandatory injunction, as according to the plaintiff, he came to know about the encroachment only when the Commissioner deputed by the trial court, with help of the Surveyor measured the property and filed Exhibit C2 and C2(a) report and sketch before the court.

8. In this appeal, the plaintiff has taken a contention that the trial court ought to have allowed I.A. No.244 of 2009 filed for amending the plaint for incorporating the prayer for recovery of possession and mandatory injunction. However, it is to be noted that the defendant constructed the residential building encroaching into the plaint schedule property as early as in the year 1989. The plaintiff filed this suit only in the year 2004, about 15 years after the said construction. Thereafter, the application for amending the plaint to incorporate the prayer for recovery of possession and mandatory injunction was filed as I.A. No.244 of 2009, about 20 years after the said construction.

9. Section 27 of the Limitation Act states that: 

“27. Extinguishment of right to property.—At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.”

10. As per Article 65 of the Limitation Act, the period of limitation for recovery of possession of immovable property is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. In addition to the same, acquiescence also could be presumed in this case as the residential building was constructed 20 years before the claim for mandatory injunction was raised. Therefore, even if the prayer for remanding the matter to the trial court after allowing the amendment application is allowed, the same will not in any way help the plaintiff. The law will not help a party, who is sleeping over his rights, till the expiry of the period of limitation.

11. Order VII Rule 7 CPC relating to relief states that :

“7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.” 

12. At the same time, it is settled law that, the court can mould the relief in certain exceptional circumstances. In the decision in Anil Kumar K. v. Ajith and Others [2012 (4) KHC 546], a Division Bench of this Court has reiterated such exceptional circumstances in paragraph 16 as follows:

“.16. ….... ......... An exceptional circumstance would arise if among others, the following conditions are satisfied: (1) when the claim had been admitted by the defendant (2) no injustice could possibly result to the defendant by granting such relief (3) the relief was one which the plaintiff could have made.” 

13. In the decision in Seshambal (Dead) through LRs v. Chelur Corporation Chelur Building and others [AIR 2010 SC 1521], the Hon’ble Supreme Court held that in the light of the subsequent events a Rent Control Court can mould the relief suitably.

14. In the decision in Gaiv Dinshaw Irani and Others v. Tehmtan Irani and Others [AIR 2014 SC 2326] relied up on by the learned counsel for the plaintiff, the Hon'ble Supreme Court held in paragraph 35 that: 

“35. Thus, when the relief otherwise awardable on the date of commencement of the suit would become inappropriate in view of the changed circumstances, the courts may mould the relief in accordance with the changed circumstances for shortening the litigation or to do complete justice.”

15. In the decision in Samir Narain Bhojwani v. Aurora Properties and Investments and Others [(2018) 17 SCC 203], the Hon'ble Supreme Court held that in deserving cases the court can mould the relief and relief can be granted to restore the status quo while granting the final relief and also that such a relief cannot be granted at an interlocutory stage.

16. However, in the instant case, no such exceptional circumstances exist so as to mould the relief in favour of the plaintiff, who was sleeping over his rights to complain about the construction made by the defendant encroaching into his property for a continuous period of 20 years from the date of construction.

17. In the above circumstances, the First Appellate Court was justified in reversing the judgment and decree of the trial court and refusing the mandatory injunction granted by the trial court by moulding the relief.

18. At the same time, while fixing the boundary separating the plaint schedule property and defendant's property, the First Appellate Court has directed the plaintiff to leave a space of 2 feet from the wall of the building constructed by the defendant encroaching into the plaint schedule property. For granting such a concession in favour of the defendant, who had put up a construction encroaching into the plaint schedule property, that too, without any specific prayer, there is no justification. 

19. Since the defendant has annexed a portion of the plaint schedule property and put up a residential building encroaching into that portion as early as in the year 1989 and the suit for fixation of boundary was filed only in 2004 and the prayer for mandatory injunction for demolishing the encroached portion of the construction and for recovery of possession was raised only in 2009, after long 20 years, the defendant cannot be directed to demolish the encroached portion of the building.

20. At the same time, the First Appellate Court was not justified in directing the plaintiff to leave a further 2 feet width space from the wall of the building constructed encroaching into the plaint schedule property to attend repairs etc., and as such, to that extent, the impugned judgment of the First Appellate Court is liable to be interfered with. In all other respects, the impugned judgment of the First Appellate Court is liable to be sustained. The substantial question of law is answered accordingly

21. In the light of the finding on the substantial question of law, this appeal is liable to be disposed of as follows:

1) The western boundary of the plaint schedule property as fixed by the First Appellate Court, as shown in Exhibit C2 (a) plan is accepted, subject to a condition that the plaintiff need not leave any space from the wall of the boundary of the building of the defendant protruding beyond the 'a-d' line

2) Considering the close relationship between the parties, I order no costs.

22. All pending interlocutory applications shall stand closed.