Dismissed

The Kuttiyattur Grama Panchayath v. K.M. Bhaskaran

Kerala HC13 Jan 2016FAO (RO)/15/2016

Case brief

AI extract

What is this about?

The judgment dismisses appeals filed by a Panchayat contending that a trial court erred in allowing a plaintiff to amend pleadings for boundary fixation. The single judge held the appellate court was empowered under CrPC to grant further opportunity and noted limitation would apply if amended.

What did the court decide?

All interlocutory applications in the appeals are closed.

The Kuttiyattur Grama Panchayath Vs K.M. Bhaskaran — Property and Title | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937

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FAO (RO).No. 15 of 2016 ()

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--------------------------(AGAINST THE JUDGMENT IN AS.NO. 16/2013 OF SUB COURT, KANNUR DATED 31-07-2015)

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(AGAINST THE JUDGMENT IN OS.NO. 447/2006 OF PRINCIPAL MUNSIFF COURT, KANNUR DATED 17-12-2008)

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APPELLANT(S)/RESPONDENTS/DEFENDANTS:

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1. THE KUTTIYATTUR GRAMA PANCHAYATH, KUTTIYATTUR AMSOM DESOM, KUTTIYATTUR P.O., MAYYIL VIA, TALIPARAMBA, REPRESENTED BY ITS SECRETARY.

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2. THE PRESIDENT, KUTTIYATTUR GRAMA PANCHAYATH, KUTTIYATTOR P.O., MAYYIL VIA, TALIPARAMBA, KANNUR DT.

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BY ADVS.SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI SRI.PRAJIT RATNAKARAN

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RESPONDENT/APPELLANT/PLAINTIFF:

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K.M. BHASKARAN,

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S/O.KUNHIRAMAN NAMBIAR, AGED 55 YEARS, AGRICULTURIST, KUTTIYATTUR AMSOM, DESOM, KUTTIYATTUR P.O., TALIPARAMBA TALUK, KANNUR-670 602.

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 13-01-2016,ALONG WITH FAO (R.O).NO.16 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = = = = = = = F.A.O.(RO).Nos.15 & 16 of 2016

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= = = = = = = = = = = = = = = =

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Dated this the 13^th day of January, 2016.

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J U D G M E N T

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The defendants in a suit for injunction are the appellants in these appeals. Among them, the second defendant is the President of the first defendant Panchayat.

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The plaint schedule property measuring 23 cents has been purchased by the plaintiff as per Ext.A1 sale deed from PW2. PW2 had a total extent of 1 acre of property. Prior to Ext.A1, PW2 had sold 22 cents of property to a third party. After Ext.A1, PW2 sold the residue of his property to the first defendant Panchayat as per Ext.B2 assignment deed. The plaint schedule property is lying adjacent to the property covered by Ext.B2 assignment deed. The suit was laid by the plaintiff alleging that the first defendant Panchayat is attempting to encroach into a portion of the plaint schedule property. The relief

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FAO.(RO).Nos.15 & 16/2016.

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sought in the suit was an injunction restraining the defendants from trespassing into the plaint schedule property. The defendants resisted the suit. According to them, there are well defined boundaries to the property purchased by the Panchayat as per Ext.B2. They also contended that prior to the purchase of the property by the Panchayat, the property was measured with the aid of the village authorities in the presence of their vendor PW2 and as such, there is no scope for any dispute as to its boundaries. Ext.B1 is the sketch prepared by the Village Officer concerned at the time of purchase of the property as per Ext.B2. In the written statement, the Panchayat raised a counter claim also seeking a decree of mandatory injunction directing the plaintiff to remove the laterite stones placed by him in between the properties. The trial court found that the plaintiff could not establish the identity of the plaint schedule property and consequently, dismissed the suit. Though the trial court found that the identity of the plaint schedule property was not established in the suit,

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FAO.(RO).Nos.15 & 16/2016.

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the trial court allowed the counter claim directing the plaintiff to remove the laterite stones placed by him in between the properties. The plaintiff challenged the decision of the trial court in two separate appeals, one against the decision in the suit and the other against the decision in the counter claim. The appellate court though confirmed the finding of the trial court that the plaintiff has not established the identity of the plaint schedule property, took the view that the plaintiff needs to be given an opportunity to establish the identity of the plaint schedule property. Consequently, the decision of the trial court was set aside and the suit was remitted for fresh disposal. In the matter of rendering the said decision, the appellate court also found that the real dispute between the parties is as to the boundary separating the plaint schedule property covered by Ext.A1 sale deed and the property purchased by the first defendant covered by Ext .B2 assignment deed. Consequently, the appellate court permitted the plaintiff to amend his pleadings to incorporate a prayer for fixation of

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FAO.(RO).Nos.15 & 16/2016.

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the boundary separating the properties and recovery of possession, if required. The first defendant Pachayat is

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aggrieved by the decision of the appellate court and hence these appeals.

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Heard the learned counsel for the appellants. 4. The learned counsel for the appellants

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contended that the plaintiff was given ample opportunity by the trial court to establish the identity of the suit property and therefore he is not entitled to any further opportunity for the said purpose. It was also contended by the learned counsel for the appellants that the opportunity given by the appellate court to the plaintiff to incorporate a prayer for fixation of boundary and recovery of possession is unwarranted, as the said reliefs are barred by limitation by now.

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As noted above, the trial court found that the plaintiff has not established the identity of the plaint schedule property. The appellants do not have a case that the plaintiff has established the identity of the plaint

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FAO.(RO).Nos.15 & 16/2016.

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schedule property. The appellate court, having regard to the facts and circumstances of the case, thought it fit to afford the plaintiff yet another opportunity to establish the identity of the plaint schedule property. Such a power is vested with the appellate court under Order XLI Rule 23 of the Code of Civil Procedure. The contention raised by the learned counsel as to the plea of limitation does not merit consideration as the said plea will certainly be available to the defendants if the plaintiff choose to amend the plaint as permitted by the appellate court. In the said view of the matter, I do not find any merit in the impugned decision of the appellate court. The appeals, in the said circumstances, are devoid of merits and are accordingly, dismissed. All the interlocutory applications in the appeals are closed.

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Sd/-

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P.B.SURESH KUMAR,

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JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

The Kuttiyattur Grama Panchayath v. K.M. Bhaskaran

Case brief

What is this about?

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The Kuttiyattur Grama Panchayath v. K.M. Bhaskaran

Case brief

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