Allowed

5EJANI and Others v. Selvister and Another

Kerala HC8 Feb 2013CRP/615/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the civil revision petition against the trial court's dismissal of a suit for recovery of possession. The revisional court found that the trial court erred in not disposing of an application to set aside the Advocate Commissioner's report before relying on it to dismiss the suit.

What did the court decide?

The judgment and decree of the Second Additional Munsiff Court were set aside and the suit was remitted for a fresh decision.

5EJANI and Others Vs Selvister and Another — Partition | Kerala HC (2013)

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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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FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934

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CRP.No. 615 of 2009 ( )

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AGAINST THE ORDER IN OS.549/2006 of II ADDL.MUNSIFF COURT,NEYYATTINKARA DATED 10-09-2009

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REVISION PETITIONERS)/PLAINTIFFS:

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REJANI, D/O.RENJITHAM, AGED 41 YEARS, RESIDING AT THALANIRA PUTHEN VEEDU, KAKKOTTAKUZHI VELLARADA DESOM, VELLARADA VILLAGE.

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ANILRAJ, S/O.THANKARAJAN, AGED 11 YEARS, RESIDING AT THALANIRA PUTHEN VEEDU, KAKKOTTAKUZHI VELLARADA DESOM, VELLARADA VILLAGE.

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ARUNRAJ, S/O.THANKARAJAN, AGED 8 YEARS, RESIDING AT THALANIRA PUTHEN VEEDU, KAKKOTTAKUZHI VELLARADA DESOM, VELLARADA VILLAGE.

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ARCHANA, D/O.REJANI, AGED 6 YEARS, RESIDING AT THALANIRA PUTHEN VEEDU, KAKKOTTAKUZHI VELLARADA DESOM VELLARADA VILLAGE MINOR PETITIONERS 2-4 ARE REPRESENTED BY THEIR MOTHER AS GUARDIAN THE 1ST PLAINTIFF REJANI.

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BY ADV. SRI.R.GOPAN

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RESPONDENTS/DEFENDANTS:

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SELVISTER, S/O.NESAN, AGED ABOUT 52, THEKKUMKARA PUTHEN VEEDU, KAKKOTTAKUZHI VELLARADA DESOM, VELLARADA VILLAGE.

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MALLIKA RANI, W/O.THANKARAJ, AGED 39 YEARS, RESIDING AT ARUN BHAVAN KOKKOTTAKUZHI ROADRIKATHU, VELLARADA DESOM VELLARADA VILLAGE.

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R,R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P.JOSEPH, J. ========================= C.R.P.No.615 of 2009

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============================ Dated this the 08^th day of February, 2013

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O R D E R

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This civil revision is preferred against judgment and decree of learned second Additional Munsiff, Neyyattinkara in O.S.No.549 of 2006.

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That is a suit filed by the petitioners under Sec.6 of the Specific Relief Act for recovery of possession of plaint E schedule on the strength of prior possession and for fixation of boundary of that property. Trial court dismissed the suit against which this civil revision is preferred.

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According to the petitioners, their predecessor-ininterest, Thankarajan was in possession of a total extent of 14 cents out of which as per Exts.A7 to A9, 12.5 cents was assigned to the first respondent. Of the said 12.5 cents, first respondent assigned 2 cents to the second respondent. It is alleged that within six months immediately preceding institution of the suit, respondents dispossessed petitioners from the plaint E schedule.

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Respondent resisted the suit and claimed that they are in possession of only 12.5 cents.

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The Advocate Commissioner submitted Exts.C1 and C1

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C.R.P.No.615 of 2009

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(a), report and plan. Advocate Commissioner was examined as PW3 while the Surveyor was examined as PW4.

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Petitioners filed I.A.No.5218 of 2007 to set aside Exts.C1 and C1(a). On that application learned Munsiff did not pass any order. However, after conclusion of the trial learned Munsiff, acting upon Exts.C1 and C1(a) rejected contention of petitioners that they were in possession of plaint E schedule and dismissed the suit.

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It is contended by learned counsel for petitioners that trial court was not right in accepting and acting upon Exts.C1 and C1(a). It is pointed out that evidence of PWs.1 and 2 show that there was no proper measurement of properties based on relevant documents. Learned counsel submits that none of the documents relied on by the parties referred to the existence of a way but the Advocate Commissioner and Surveyor have shown in Ext.C1 and C1(a) such a way. According to the learned counsel, at any rate the way is not part of E schedule.

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Learned counsel for the respondent contended that respondents are in possession of only a total extent of 12.5 cents as per Exts.A7 to A9 and hence question of recovering of any portion of 12.5 cents from the respondents do not arise.

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Exts.A7 to A9 say that Thankarajan was in possession of

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C.R.P.No.615 of 2009

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total extent of 13.832 cents out of which as per Exts.A7 to A9, 12.5 cents was assigned to the first respondent. It was out of the 12.5 cents that the first respondent has assigned 2 cents to the second respondent. Hence title and possession of the respondents can only be over 12.5 cents as per Exts.A7 to A9.

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I stated that in Exts.A7 to A9, there is reference to Thankarajan being in possession of 13.832 cents including excess land. Exts.X1 and X2 and revenue receipts produced by petitioners support their contention that they were in possession of land in excess of 12.5 cents covered by Exts.A7 to A9.

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As far as Exts.C1 and C1(a) is concerned, it appears from the evidence of CWs.1 and 2 that it was not with respect to document of title that measurement was made. I must also notice that I.A.No.5218 of 2007 to set aside Exts.C1and C1(a) was not considered by the learned Munsiff. In that view of the matter I am unable to sustain the impugned judgment and decree. The matter has to go back to the trial court for fresh decision.

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Learned Munsiff has to dispose of I.A.No.5218 of 2007 in the light of the evidence on record or, after further evidence if any is adduced. In case learned Munsiff finds that measurement made by the Surveyor is not acceptable, it follows that Exts.C1 and C1(a)

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C.R.P.No.615 of 2009

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are either to be set aside or remitted and fresh report and plan/further details are obtained as circumstances warranted. Thereafter learned Munsiff shall decide the suit.

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Resultantly this civil revision is allowed as under:

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(i) Judgment and decree dated 10.09.2009 in O.S.No.549 of 2006 of the Second Additional Munsiff Court, Neyyattinkara are set aside.

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(ii) O.S.No.549 of 2006 is remitted to that Court for fresh decision in the light of observations made above.

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(iii) Parties are directed to appear in the court below on 12.03.2013.

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Sd/-

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THOMAS P. JOSEPH, JUDGE

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Sbna

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True Copy

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P.A to Judge

5EJANI and Others v. Selvister and Another

Case brief

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5EJANI and Others v. Selvister and Another

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