Dismissed

Mathew C.Thomas v. C.M.Joseph @ Kunjukochu

Kerala HC13 Jan 2016RSA/1094/2012

Case brief

AI extract

What is this about?

This second appeal concerns a suit for injunction and possession over disputed properties. The trial court dismissed the suit, setting aside an Advocate Commissioner's report filed without notice to defendants. The appellate court sustained the dismissal but made observations based on that invalid report. The High Court dismissed the appeal, vacating such unwarranted observations to prevent prejud

What did the court decide?

The second appeal was dismissed, but the observations by the appellate court regarding the sustainability of the plaintiffs' case based on the set-aside Advocate Commissioner report were vacated.

Mathew C.Thomas Vs C.M.Joseph @ Kunjukochu — Partition | 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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RSA.No. 1094 of 2012

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JUDGMENT DATED 29-03-2012 IN AS 131/2009 AND IA.1375/2011 OF DISTRICT COURT, KOTTAYAM JUDGMENT DATED 20-03-2009 IN OS 358/2005 OF MUNSIFF'S COURT, CHANGANACHERRY

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APPELLANT(S)/(APPELLANTS IN THE LOWER APPELLATE COURT AND PLAINTIFFS

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-------------------------------------------------------------------------------------------------------------------------IN THE TRIAL COURT):

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--------------------------------

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1. MATHEW C.THOMAS,

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S/O.LATE C.M.THOMAS, CHETHIPUZHAYAYA MAMMOOTTIL,

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MADAPALLY VILLAGE, MAMMOODU BHAGOM,

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CHANGANACHERRY TALUK.

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2. JOSEPH C.THOMAS,

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S/O.LATE C.M.THOMAS, CHETHIPUZHAYAYA MAMMOOTTIL, MADAPALLY VILLAGE, MAMMOODU BHAGOM,

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CHANGANACHERRY TALUK.

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3. THRESSIAMMA THOMAS,

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D/O.LATE C.M.THOMAS, CHETHIPUZHAYAYA MAMMOOTTIL,

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MADAPALLY VILLAGE, MAMMOODU BHAGOM,

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CHANGANACHERRY TALUK.

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BY ADVS.SRI.R.D.SHENOY (SR.)

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SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL

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RESPONDENT(S)/(RESPONDENTS IN THE APPEAL AND DEFENDANTS IN THE TRIAL

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-------------------------------------------------------------------------------------------------------------------------COURT):

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-------------

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1. C.M.JOSEPH @ KUNJUKOCHU, S/O.LATE MATHAI, CHETHIPUZHAYAYA MAMMOOTTIL, MADAPALLY VILLAGE, MAMMOODU BHAGOM, CHANGANACHERRY TALUK. (DIED)

msv/

-2-

-2-

RSA.No. 1094 of 2012

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2. MATHEW C.JOSEPH @ GIBI KUNJUKOCHU, S/O.LATE C.M.THOMAS, CHETHIPUZHAYAYA MAMMOOTTIL, MADAPALLY VILLAGE, MAMMOODU BHAGOM, CHANGANACHERRY TALUK, MAMMOODU P.O.PIN-686 553.

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3. ZACHARIAS C. THOMAS, S/O.LATE C.M.THOMAS, CHETHIPUZHAYAYA MAMMOOTTIL, MADAPALLY VILLAGE, MAMMOODU BHAGOM, CHANGANACHERRY TALUK, MAMMOODU P.O., PIN 686 553.

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4. VALSAMMA GEORGE, W/O.LATE C.M.THOMAS, CHETHIPUZHAYAYA MAMMOOTTIL, MADAPALLY VILLAGE, MAMMOODU BHAGOM, CHANGANACHERRY TALUK, MAMMOODU P.O. PIN- 686 553.

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5. GEORGE C.JOSEPH @ JIJO, S/O.LATE C.M.THOMAS, CHETHIPUZHAYAYA MAMMOOTTIL, MADAPALLY VILLAGE, MAMMOODU BHAGOM, CHANGANACHERRY TALUK, NOW AT A1-ESSA MEDICAL AND SCIENTIFIC EQUIPMENTS, P.O. 3562, SAFAT, 13036, KUWAIT SCCC OFFICE NO. 118, GATE 38, SHAWIK INDUSTRIAL, KUWAIT.

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6. RANI SCHOKY @ GITTY,

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CHETHIPUZHAYAYA HOUSE, MAMMOODU P.O. MADAPPALLY VILLAGE, NOW RESIDING C/9 SHOCKY GEORGE, ACCOUNTING CONSULTANT, SHIPNET , DUBAI, NIZA, F2 11C, P.O. BOX NO.502315, DUBAI INTERNET CITY, DUBAI, UAE.

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7. THOMAS C.JOSEPH @ JOJO,

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CHETHIPUZHAYAYA MAMMOOTTIL, MADAPALLY VILLAGE, MAMMOODU BHAGOM, CHANGANACHERRY TALUK, NOW RAT INTERSIGHT HOLIDAY (P) LTD. 28/243, BENITSA BUILDING, S.A. ROAD, PANAMPALLY NAGAR, KOCHI -682 036.

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R1 & R2 BY ADVS. SRI.MATHEW JOHN R2 BY ADV. SRI.DOMSON J.VATTAKUZHY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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P.B.SURESH KUMAR, J.

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R.S.A.No.1094 of 2012

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Dated this the 13^th day of January, 2016

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JUDGMENT

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The plaintiffs in a suit for injunction, both mandatory and prohibitory, and also for recovery of possession are the appellants in the second appeal.

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The suit properties originally belonged to one

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Mathai. Mathai had two sons, C.M.Thomas and C.M.Joseph. The plaintiffs are the children of C.M.Thomas. C.M.Joseph is the first defendant. The second defendant is the son of the first defendant. Pending suit, C.M Joseph died. Other than the second defendant, defendants 4 to 7 are the legal representatives of C.M.Joseph. As per Ext.A1 assignment deed, Mathai had conveyed plaint schedule item No.1 property to C.M.Thomas. On the same day, Mathai had also

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R.S.A.No.1094 of 2012 2

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conveyed the plaint schedule item No.2 property to the first defendant. According to the plaintiffs, the second defendant has erected a structure encroaching upon a portion of the plaint schedule item No.1 property. Item No.3 in the plaint is the portion of the plaint item No.1 property alleged to have been encroached upon by the second defendant. The suit was filed in the circumstances, seeking a decree of prohibitory injunction restraining defendants 1 and 2 from trespassing into the plaint item No.1 property and for recovery of possession of the plaint item No.3 property. The suit was resisted by defendants 1 and 2. According to them, the second defendant has not encroached upon any portion of item No.1 property. It is their case that the property shown as item No.3 property in the suit is a portion of item No.2 property. There were three reports and three plans submitted by the Advocate Commissioner appointed in the suit. The reports are Exts.C1, C2 and C3 and the plans are Exts.C1(a), C2(a) and C3(a). All the aforesaid reports and

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R.S.A.No.1094 of 2012 3

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plans were obtained at the instance of the plaintiffs. Among the said reports and plans, Ext.C1 report and Ext.C1(a) plan were submitted by the Advocate Commissioner without notice to the defendants. Defendants 1 and 2 in the course of the proceedings objected Exts.C2 and C3 reports and Exts.C2(a) and C3(a) plans. The objections raised by defendants 1 and 2 in respect of the said reports and plans were considered along with the suit. On a consideration of the materials on record, the trial court found that Exts.C2 and C3 reports as also Ext.C2(a) and C3(a) plans are unsustainable in law and accordingly, set aside those reports and plans. Consequently, for want of materials to establish the case set up by the plaintiffs, the suit was dismissed. The plaintiffs took up the matter in appeal. In the appeal, the plaintiffs sought leave of the court to amend the plaint by filing I.A.No.1375 of 2011. The attempt of the plaintiffs by filing I.A.No.1375 of 2011 was to incorporate a prayer for fixation of boundary separating plaint item Nos.1

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R.S.A.No.1094 of 2012

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and 2, as essentially the dispute between the parties is as to the boundaries of the properties obtained by C.M.Thomas and C.M.Joseph. The contesting defendants objected to the amendment sought by the plaintiffs. The appellate court did not grant leave to the plaintiffs to amend the plaint. On the merits, in so far as the plaintiffs could not establish the case set up by them, the appellate court confirmed the decision of the trial court. Aggrieved by the concurrent decisions against them, the plaintiffs have come up in this second appeal.

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Heard the learned Senior Counsel for the

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plaintiffs as also the learned counsel for the second respondent/second defendant.

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The learned Senior Counsel for the appellants pointed out that in so far as the suit was dismissed by the trial court holding that the plaintiffs have not established the identity of the suit properties, the only point arose for consideration before the appellate court was as to whether

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R.S.A.No.1094 of 2012 5

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the materials on record are sufficient to establish the identity of the suit properties. According to the learned Senior Counsel, if the materials available on record are not sufficient to establish the identity of the suit properties, the options available to the court were either to dismiss the appeal or to give the plaintiffs another opportunity to establish the identity of the suit properties. It was contended by the learned Senior Counsel that instead of adopting the aforesaid courses, the appellate court, relying on Ext.C3 report and C3(a) plan filed by the Advocate Commissioner appointed in the suit which have been set aside by the trial court, made certain observations as to the sustainability of the case of the plaintiffs. Though the learned Senior Counsel elaborated on the correctness of the observations rendered by the appellate court based on Ext.C3 report and C3(a) plan, I do not think that it is necessary to refer to the said contentions of the learned Senior Counsel in this judgment. According to the learned

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R.S.A.No.1094 of 2012 6

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Senior Counsel, the observations made by the appellate court based on Ext.C3 report and C3(a) plan would cause grave prejudice to the parties in the subsequent litigations, if any, between them. It was pointed out that the

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observations made by the appellate court based on Ext.C3 report and Ext.C3(a) plan are unwarranted in the facts and circumstances of the present case.

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Per contra, the learned counsel for the second defendant pointed out that what is observed by the appellate court in the judgment are only facts which are admitted by the plaintiffs in paragraphs 3 and 4 of the plaint and therefore, it cannot be contended that the said observations are unwarranted.

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As noted above, Ext.C3 report and C3(a) plan were objected to by the defendants. Consequently, the correctness of the same was considered by the trial court and on an elaborate consideration of the materials on record, the trial court found that the said report and plan

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R.S.A.No.1094 of 2012 7

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are liable to be set aside. As such, according to me, it was unnecessary for the appellate court to refer to the said report and plan and make observations as to the sustainability of the case of the plaintiffs while sustaining the judgment of the trial court.

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The second appeal, in the circumstances, is dismissed, vacating the observations made by the appellate court based on Ext.C3 report and C3(a) plan as to the sustainability of the case of the plaintiffs.

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P.B.SURESH KUMAR, JUDGE.

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smm

Mathew C.Thomas v. C.M.Joseph @ Kunjukochu

Case brief

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What did the court decide?

Mathew C.Thomas v. C.M.Joseph @ Kunjukochu

Case brief

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What did the court decide?

What the court decided

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