Allowed

N.Kathiravel v. Hamsaveni

Kerala HC18 Feb 2016RP/1208/2015

Case brief

AI extract

What is this about?

The High Court in review allowed the petition and recalled the second appeal judgment which dismissed a property suit. The appellate court had remitted the matter ignoring the Advocate Commissioner's report that the property had been measured and identified, constituting a failure to advert to established facts.

What did the court decide?

The review petition is allowed; the judgment in the second appeal is recalled; all interlocutory applications are closed.

N.Kathiravel Vs Hamsaveni — 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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THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937

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RP.No. 1208 of 2015 IN RSA NO.227/2010 (B)

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AS. NO.186/2006 OF DISTRICT COURT, PALAKKAD. O.S. NO.423/2003 OF MUNSIFF COURT, CHITTUR.

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REVIEW PETITIONER/RESPONDENT/APPELLANT/DEFENDANT:

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N. KATHIRAVEL, S/O NATARAJAN CHETTIAR, AGED 42 YEARS, NELLIPALLAM, NELLEPPILLY THEKKE DESOM, CHITTUR TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.BINOY VASUDEVAN, SRI.R.MANIKANTAN.

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RESPONDENTS/APPELLANTS/RESPONDENT/PLAINTIFF:

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1. HAMSAVENI, AGED 46 YEARS, D/O SOMASUNDARAN CHETTIAR, NELLIPPALLAM, NELLEPPILLY THEKKE DESOM, CHITTUR TALUK, PALAKKAD DISTRICT-678 105.

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2. MAHESHWARI, AGED 49 YEARS, D/O SOMASUNDARAN CHETTIAR, NELLIPPALLAM, NELLEPPILLY THEKKE DESOM, CHITTUR TALUK, PALAKKAD DISTRICT-678 105.

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3. BALSEKHAR, AGED 45 YEARS, S/O SOMASUNDARAN CHETTIAR, NELLIPPALLAM, NELLEPPILLY THEKKE DESOM, CHITTUR TALUK, PALAKKAD DISTRICT-678 105.

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4. NARAYANASWAMY, AGED 43 YEARS, S/O SOMASUNDARAN CHETTIAR, NELLIPPALLAM, NELLEPPILLY THEKKE DESOM, CHITTUR TALUK, PALAKKAD DISTRICT-678 105.

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5. JANAPRASAM, AGED 41 YEARS, S/O SOMASUNDARAN CHETTIAR, NELLIPPALLAM, NELLEPPILLY THEKKE DESOM, CHITTUR TALUK, PALAKKAD DISTRICT-678 105.

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RP.No. 1208 of 2015

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6. RATHNVEL, AGED 41 YEARS, S/O SOMASUNDARAN CHETTIAR, NELLIPPALLAM, NELLEPPILLY THEKKE DESOM, CHITTUR TALUK, PALAKKAD DISTRICT-678 105.

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7. MAHALAKSHMY, AGED 36 YEARS, S/O SOMASUNDARAN CHETTIAR, NELLIPPALLAM, NELLEPPILLY THEKKE DESOM, CHITTUR TALUK, PALAKKAD DISTRICT-678 105.

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8. RATHI, AGED 34 YEARS,

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S/O SOMASUNDARAN CHETTIAR, NELLIPPALLAM, NELLEPPILLY THEKKE DESOM, CHITTUR TALUK, PALAKKAD DISTRICT-678 105.

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R1 TO R8 BY ADVS. SRI.SANTHEEP ANKARATH. SRI.A.DINESH RAO.

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 18-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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rs.

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RP.No. 1208 of 2015

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APPENDIX

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PETITIONER'S ANNEXURES:-

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ANNEXURE A THE ORIGINAL OF THE MEDICAL CERTIFICATE.

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RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

P.B.SURESH KUMAR, J.

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R.P.No.1208 of 2015

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R.S.A.No.227 of 2010

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-----------------------------------------------Dated this the 18^th day of February, 2016

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O R D E R

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The respondent in the appeal seeks review of the

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judgment.

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The second appeal arose from a suit for

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injunction. Though the suit was decreed by the trial court, the appellate court reversed the decision of the trial court and dismissed the suit. The legal representatives of the plaintiff who got themselves impleaded as additional plaintiffs in the suit have come up before this Court in the second appeal.

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The case of the plaintiff was that the defendant

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has attempted to trespass into the plaint schedule property

R.P.No.1208 of 2015

R.S.A.No.227 of 2010

measuring 68.5 cents which is in his possession. The case of the defendant, on the other hand, was that the plaintiff who had only 2.66 acres of land gave the said land to his two sons and the sons of the plaintiff have mortgaged the said property to Catholic Syrian Bank. According to the defendant, since the sons of the plaintiff did not liquidate the mortgage debt, the mortgaged property was brought for sale by the bank in enforcement of mortgage debt and the same was purchased by the bank. It is the case of the defendant that later, he purchased the property mortgaged by the sons of the plaintiff from the aforesaid bank. As such, according to the defendant, the entire property held by the plaintiff originally is in his possession.

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It is seen that in the course of the trial, an Advocate Commissioner was deputed to locate and identify the suit property and the Advocate Commissioner filed Ext.C1 report and Ext.C1(a) plan, after measuring the property. The plaintiff did not file any objection to Ext.C1 report and Ext.C1(a) plan. The appellate court found that

R.P.No.1208 of 2015

R.S.A.No.227 of 2010

as per the report of the Advocate Commissioner, the plaint schedule property as described in the suit comes within the boundary description of the title deed of the defendant. The appellate court also noticed that the plaintiff has not averred anything about the document based on which he obtained title to the suit property. It is seen that it is the said circumstances, the appellate court has reversed the decision of the trial court and dismissed the suit.

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The judgment rendered by this Court in the second appeal, however, indicates that this Court was of the view that the plaintiff did not get an opportunity at all to establish the identify of the suit property by measuring the suit property. As such, this Court set aside the decisions of the courts below and remitted the suit for fresh disposal after affording the plaintiff an opportunity to identify the suit property. There is no reference in the judgment about Ext.C1 report and Ext.C1(a) plan prepared by the Advocate Commissioner appointed in the suit. It is thus evident that the judgment sought to be reviewed was rendered without

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R.P.No.1208 of 2015

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in R.S.A.No.227 of 2010

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adverting to the fact that the suit property has been measured and identified at the trial stage. In the said view of the matter, the judgment in the second appeal is liable to be reviewed.

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In the result, the review petition is allowed and the judgment sought to be reviewed is recalled. All the interlocutory applications in the review petition are closed.

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P.B.SURESH KUMAR, JUDGE.

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smm

N.Kathiravel v. Hamsaveni

Case brief

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N.Kathiravel v. Hamsaveni

Case brief

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