Allowed

Kamalamma v. Krishnankutty

Kerala HC14 Jan 2013FAO/181/2012

Case brief

AI extract

What is this about?

High Court Kerala set aside a remand order by the additional district court. The High Court held the remand was erroneous due to a procedural mistake of misreading title deeds to find property extent was 37 cents instead of 52 cents. The appeal was allowed with a direction for fresh disposal based on correct title evidence.

What did the court decide?

The order of remand is set aside. The appellate court is directed to reconsider the case afresh and dispose of the same expeditiously.

Kamalamma Vs Krishnankutty — Property and Title | 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 HARUN-UL-RASHID

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MONDAY, THE 14TH DAY OF JANUARY 2013/24TH POUSHA 1934

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FAO.No. 181 of 2012 ()

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(AGAINST THE JUDGMENT IN AS.54/2009 DATED 15.3.2012 ON THE FILE OF THE ADDITIONAL DISTRICT COURT II, MAVELIKKARA IN O.S.NO. 408/2004 ON THE FILE OF THE MUNSIFF COURT, MAVELIKKARA)

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APPELLANT(S)/COUNTER CLAIM DEFENDANTS:

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KAMALAMMA, AGED 67 YEARS W/O.K.G.RADHAKRISHNAN,AJANTHA,ERAVANKARA MURI THAZHAKKARA VILLAGE,MAVELIKKARA TALUK.

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K.G.RADHAKRISHNAN, AGED 70 YEARS S/O.GOPALA PILLAI,AJANTHA,ERAVANKARA MURI THAZHAKKARA VILLAGE,MAVELIKKARA TALUK.

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BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)

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RESPONDENT(S)/COUNTER CLAIM PLAINTIFFS:

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KRISHNANKUTTY, S/O.LATE NANU,ANIL BHAVANAM,ERAVANKARA THAZHAKKARAVILLAGE,MAVELIKKARA TALUK.

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JAGADAMMA,

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W/O.KRISHNANKUTTY,ANIL BHAVANAM,ERAVANKARA THAZHAKKARA VILLAGE,MAVELIKKARA TALUK.

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R1 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL

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R1 BY ADV. SMT.ASHA ELIZABETH MATHEW

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 14-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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al/-

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HARUN-UL-RASHID,J.

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F.A.O. No. 181 OF 2012

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Dated this the 14^th day of January 2013

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JUDGMENT

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Following substantial questions of law are formulated in this appeal.

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i) Whether the finding of the lower appellate court that the 1^st appellant purchased only 37 cents as per Ext.A1&A2 will stand in view of the registered documents which shows she purchased 52 cents ?

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ii) Whether the direction of the lower appellate court to the respondents to file suit against the Government and its employees for correcting the mistake in the resurvey plan is not sustainable in view of the fact that the respondents did not challenge the correctness of the resurvey plan ?

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iii) Whether the direction to file suit against the Government officials for correcting the resurvey plan will lie in view of the specific bar under Survey and Boundaries Act to challenge the finalization after 1 year ?

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iv) Whether the direction to the trial court to decide the suit on the basis of old survey plan will lie after the finalization of the resurvey ?

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F.A.O. 181/2012 2

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Appellants are the plaintiffs in O.S.No.408/2004 on the file of the Munsiff Court, Mavelikkara. They are the respondents in A.S.No.54/09 on the file of the Additional District Court Mavelikkara. The appeal is directed against the order of remand dated 15.3.2012 passed by the court below in A.S.No.54/09.

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The suit was filed for declaration and injunction. The respondents, who are the defendants in the suit, filed counter claim for recovery of possession, injunction and for fixation of boundary. Plaintiffs 1 and 2 are husband and wife. The plaint A schedule property belongs to first plaintiff as per Exts.A1 sale deed No. 1367/1979 and Ext. A2 sale deed No. 1368/1979. Plaint B schedule property lying on the south western side of plaint A schedule property belongs to the defendants. The suit was filed alleging that the defendants had cut a slope on the eastern boundary of B schedule property, in perpendicular and removed sizable quantities of earth and as a result of the act of the defendants plaint A schedule property has lost the entire lateral support available from the adjacent land of defendants. The suit was resisted by the defendants. The defendants filed a counter claim alleging that a portion of plaint schedule property was trespassed upon by the plaintiff, sought for recovery of the said portion and for fixation of boundary. The trial court

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F.A.O. 181/2012 3

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examined the contentions of both sides and found that plaintiffs are entitled for declaration of easement right of lateral support of plaint schedule property. Accordingly, decree was passed declaring that plaintiffs have acquired easement right and lateral support over the plaint schedule property. A decree for mandatory injunction was passed directing the defendants to restore lateral support by constructing a retaining wall within three months and granted prohibitory injunction restraining the defendants from trespassing in to plaint 'A' schedule property, destroying the western boundary by removing earth and committing any waste.

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Aggrieved by the decree passed in favour of the plaintiffs, the defendants filed A.S.54/09. The appellate court by impugned judgment set aside the decree and judgment passed by the trial court and remanded the case for consideration afresh. The appellate court granted the plaintiffs an opportunity to measure out their properties on the basis of their title deeds and old survey plan.

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The title deeds of the plaint A schedule property are marked as Exts.A1 and A2. In Ext.A1, the extent of property is mentioned as 32 cents and in Ext.A2 as 20 cents. The extent of property of the defendants as per Ext.B4 title deed is 28.5

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F.A.O. 181/2012 4

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cents. The lower appellate court misread Ext.A1 document. There are two schedules in Ext.A1 title deed. The extent mentioned in first schedule is 17 cents and in the 2^nd schedule as 15 cents. The lower appellate court read only the first schedule. The 2^nd schedule in Ext.A1 was omitted obviously by a mistake. In that situation, the lower appellate court found that the first plaintiff is having title for only 17 cents as per Ext.A1 and 20 cents as per Ext.A2. Thus the court held that the first plaintiff is the title holder of only 37 cents. This was happened due to a mistake in reading Ext.A1 title deed properly. The total extent owned by him as per Exts.A1 and A2 is 52 cents.

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Therefore, the court observed that though the first plaintiff is having title to only 37 cents he is in possession and enjoyment as per resurvey 50 cents. The court also further held that though the defendants is the owner of 28.5 cents as per Ext.B4 title deed the defendants are in possession of only 23.5 cents of land. On the basis of the said facts the court held that the plaintiff is in possession and enjoyment of more extent and the defendants are in possession and enjoyment of lesser extent.

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In paragraph 20 last sentence reads as follows:

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“ So what is evident is that the first plaintiff is having tax payment as per resurvey in respect of 20.17

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F.A.O. 181/2012 5

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ares equivalent to 50 cents as against her title deed to an extent of 37 cents.”

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Paragraph 22 of the judgment reads as follows:

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“So the title deed relied on by the first plaintiff would goes to show that she obtained 37 cents as per Ext.A1 and A2 title deeds. But she is paying tax to an extent of 20.17 ares equivalent to 50 cents. To the contrary, the defendants who obtained title to an extent of 28½ cents as per Ext.B4 had paid tax during 1981, 1982 to their entire extent of 28½ cents. But now the property over which the defendants are paying tax only to an extent of 23½ cents.”

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Paragraph 24 of the judgment reads as follows :

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“But nowhere in the pleadings of the defendants, they have not challenged the resurvey in any manner. However, it is seen from the counter claim that, the defendants are claiming right over 28½ cents of property based on their title. But as per the resurvey, they have property only to an extent of 9.48 ares. So the commission report as well as the Ext.C2(a) plan appears to be against the title deed of both parties, though the same is in conformity with the resurvey plan”.

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Paragraph 27 reads as follows :

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“Coming back to the claim of the plaintiff's as well as the reliefs sought by the plaintiff's are concerned, their claim to right of easement by prescription over the C schedule portion of plaint B schedule property to get lateral support to plaint A schedule property, as vehemently argued by the learned counsel for the

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F.A.O. 181/2012 6

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plaintiff, it is necessary to locate what is the actual extent of the above property. Likewise, as far as the counter claim relief prayed for by the defendants are concerned, the defendants prayed for recovery of possession of counter claim A schedule property after fixing the boundary between plaint A schedule property as well as the counter claim schedule property with the relief of consequential injunction”.

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Paragraph 28 reads as follows:

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“I have already pointed out above that, the first plaintiff who is having title to an extent of 37 cents is now having 50 cents as per resurvey plan. In this context, the status of the first plaintiff as that of a Deputy Collector, who held a key post in the Revenue Department as the custodian of land records assumes importance. Likewise, the defendants are having 28½ cents as per the title deed, it is now having only 9.48 ares. So the property obtained by the defendants as per title deed is considerably decreased as per the resurvey measurement. Here also the status of the first plaintiff as Deputy Collector has some relevance. The sum total of my discussion leads to the conclusion that, the measurement of the entire property on the basis of the old survey plan and the respective title deeds is necessary to locate the actual extent of plaint A schedule property and counter claim property on the basis of title. Only when such a clear distinction is drawn the portion from which the lateral support claimed by the plaintiff's can be located.”

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F.A.O. 181/2012 7

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Thus it is clear that the remand order has been passed solely on the basis of the mistake committed in noting down the correct extent of plaint A schedule property covered by Exts.A1 and A2 sale deeds.

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The impugned order is liable to be set aside. The appellate court shall decide the case on merits in accordance with law.

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In the result, the order of remand is set aside. The appellate court is directed to consider the case afresh and dispose of the same in accordance with law. The appeal shall be disposed of, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of the judgment. The parties shall appear before the court below on 4^th February 2013. The counsel shall inform the parties. No order as to costs.

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HARUN-UL-RASHID JUDGE

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al/-

Kamalamma v. Krishnankutty

Case brief

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Kamalamma v. Krishnankutty

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