Partly allowed

Sujatha B.Nair v. Sukumari Amma

Kerala HC9 Aug 2012RSA/889/2009

Case brief

AI extract

What is this about?

In regular second appeal concerning a property dispute, the court accepted the parties' settlement filed through an interlocutory application and passed a compromise decree varying the boundary and injunction clauses of the original decree.

What did the court decide?

I.A. No.2028/2012 allowed; settlement recorded; new decree passed embodying boundary re-fixation, tree removal, and varied injunction.

Sujatha B.Nair Vs Sukumari Amma — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 9TH DAY OF AUGUST 2012/18TH SRAVANA 1934

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RSA.NO. 889 OF 2009 ( )

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AS.155/2005 OF FIRST ADDITIONAL SUB COURT, TRIVANDRUM OS.263/2003 OF SECOND ADDITIONAL MUNSIFF'S COURT, TRIVANDRUM

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APPELLANT/APPELLANT/PLAINTIFF:

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SUJATHA B.NAIR W/O.BHASKARAN NAIR, PANKAJ, POST OFFICE LANE PERUNTHANNI, THIRUVANANTHAPURAM.

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BY ADV. SRI.D.KISHORE

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RESPONDENTS/1^ST RESPONDENT & ADDL. 2^ND RESPONDENT/DEFENDANT:

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1. SUKUMARI AMMA

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ASWATHY, STARCH JUNCTION, VELLIMON KUNDARA. (DELETED)

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2. S.GIREESAN, S/O.SOMAN PILLAI, SIVAKRIPA, T.C.36/1407, J.P.NAGAR-2 PERUNTHANNI, THIRUVANANTHAPURAM.

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THE FIRST RESPONDENT IS DELETED FROM THE ARRAY OF PARTIES AS PER ORDER DATED 9.8.2012 ON I.A. NO.2029 OF 2012

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BY ADV. SRI.R.S.KALKURA

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 9.8.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.889 of 2009

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==================================== Dated this the 09^th day of August, 2012

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J U D G M E N T

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The Second Appeal arises from the judgment and decree of learned First Additional Sub Judge, Thiruvananthapuram in A.S. No.155 of 2005 confirming judgment and decree of learned Second Additional Munsiff, Thiruvananthapuram in O.S. No.263 of 2003.

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Appellant-plaintiff sought a decree for recovery of the plaint B schedule on the strength of the title she claimed. The courts below negatived the claim of the appellant. Hence the Second Appeal.

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Vide order passed this day on I.A. No.2029 of 2012 the 1^st respondent in the appeal is removed from the array of parties.

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The appellant and the 2^nd respondent have settled the dispute among them and have filed I.A. No.2028 of 2012. They request that the settlement be accepted and recorded and a decree may be passed in terms of the settlement.

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On going through the affidavit in support of the application, it is seen that the memorandum of settlement is

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R.S.A. No. 889 of 2009

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-: 2 :-

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signed by the parties and their respective counsel. On hearing the learned counsel on both sides and perusing the memorandum of settlement, I find no reason why the settlement shall not be accepted.

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Resultantly, the Second Appeal is disposed of as under:

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(a) I.A. No.2028 of 2012 is allowed. The

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settlement reached between the appellant and the 2^nd respondent is accepted and recorded.

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(b) In substitution of the judgment and decree of learned First Additional Sub Judge, Thiruvananthapuram in A.S. No.155 of 2005 and of learned Second Additional Munsiff, Thiruvananthapuram in O.S. No.263 of 2003, a decree is passed in terms of the settlement as under:

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(i) The decrees of the courts

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below allowing the 1^st party to put up boundary wall through IJ line in Ext.C1(a), plan is varied.

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R.S.A. No. 889 of 2009

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-: 3 :-

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(ii) It is mutually agreed by the 1^st and 2^nd parties to fix the boundary and put up a compound wall close to the northern side of the well situated on the southern side of the property of the 1^st party herein, in the east-west direction. In Ext.C1(a), plan the well is shown just north to the CD line at a distance of 2.7 M. from point E. Now the said CD line is altered to a distance of 3.9 M. from point E. For further clarification, it is hereby confirmed that the boundary is re-fixed and the compound wall will be constructed just north to the well situated to the north of CD line in Ext.C1(a), plan.

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(iii) The 2^nd party hereby agrees to cut and remove the coconut tree standing on the eastern side of his property.

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(iv) Both parties hereby agree that hereinafter there will not be any disputes

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R.S.A. No. 889 of 2009

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-: 4 :-

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between them or their legal heirs, representatives or successors with respect to the fixation of boundary as stipulated in

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para “ii” above.

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(v) The injunction granted by the appellate court in favour of the 2^nd party stands varied and is limited only with respect to the property held by the 2^nd party pursuant to the re-fixation of the boundary on the basis of this compromise. In other words, the order of injunction will not apply as regards the property situated to the south of the newly fixed boundary.

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(vi) The 1^st party and the 2^nd party hereby consent to convert this compromise into a decree in R.S.A. No.889 of 2009.

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(it is made clear that the reference to the first and second parties above is to the first and second parties to the

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R.S.A. No. 889 of 2009

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-: 5 :-

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memorandum of settlement)

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(vii) Parties shall suffer their costs

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throughout.

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Ext.C1(a), plan will form part of the decree of this Court.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Sujatha B.Nair v. Sukumari Amma

Case brief

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Sujatha B.Nair v. Sukumari Amma

Case brief

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