Partly allowed

Gopalakrishnan Nair v. Sadasivan Nair and Another

Kerala HC22 Jan 2016RSA/14/2013

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a second appeal regarding a suit for recovery of possession. The court dismissed the appeal but modified the lower court's decree to allow recovery of the disputed plot excluding a well situated within it.

What did the court decide?

Second appeal dismissed but second appeal decree modified to permit recovery of plot excluding the well and minimum area required for using the well.

Gopalakrishnan Nair Vs Sadasivan Nair and Another — Partition | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

¶4

FRIDAY, THE 22ND DAY OF JANUARY 2016/2ND MAGHA, 1937

¶5

RSA.No. 14 of 2013 ( )

¶6

----------------------AGAINST THE JUDGMENT IN AS.NO. 10/2009 OF SUB COURT, THIRUVALLA DATED 21-02-2011 AGAINST THE JUDGMENT IN OS.NO. 491/2002 OF MUNSIFF COURT, THIRUVALLA DATED 31-01-2009

¶7

APPELLANT/FIRST RESPONDENT/FIRST DEFENDANT :

¶8

GOPALAKRISHNAN NAIR AGED 70 YEARS, S/O. KRISHNA PANICKER ANJILETHU THOPPIL (H), PARUMALA, KADAPRA VILLAGE THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

¶9

BY ADVS.SRI.T.P.PRADEEP

¶10

SRI.S.SREEDEV SRI.K.RAMACHANDRAN

¶11

RESPONDENTS/APPELLANTS/PLAINTIFFS/2ND DEFENDANT :

¶12

1. SADASIVAN NAIR

¶13

AGED 68 YEARS, S/O. KRISHNA PANICKER, ANJILETHU THOPPIL (H) PARUMALA P.O., KADAPRA VILLAGE-689 626, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

¶14

2. VISWANATHAN NAIR,

¶15

AGED 57 YEARS, S/O. KRISHNA PANICKER, DO-

¶16

3. GANGADHARAN NAIR, AGED 54 YEARS, S/O. KRISHNA PANICKER, DO-

¶17

R1 & R2 BY ADV. SRI.SATHISH NINAN R3 BY ADVS. SRI.RAJESH NAMBIAR SRI.RAJESH R. NAIR

¶18

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

¶20

P.B.SURESH KUMAR, J.

¶21

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

¶22

R.S.A.No.14 of 2013.

¶23

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

¶24

Dated this the 22^nd day of January, 2016.

¶25

J U D G M E N T

¶26

The first defendant in a suit for fixation of

¶27

boundary and recovery of possession is the appellant in this second appeal.

¶28

The facts relevant for disposal of this second appeal are thus:

¶29

The plaint schedule item No.1 property was obtained by the first plaintiff as per Ext.A1 partition deed. The plaint schedule item No.3 property was obtained by the first defendant as per the very same partition deed. The plaint schedule item No.1 property was included in the B schedule to the partition deed and the plaint schedule item No.3 property was included in the A schedule to the said partition deed. According to the first plaintiff, the plaint schedule item No.5 property is a portion of the property

¶30

RSA.No.14/2013.

¶31

allotted to the first plaintiff as per Ext.A1 partition deed and the first defendant has trespassed into the same. The suit was, therefore, filed seeking, among others, a decree for recovery of possession of the plaint schedule item No.5 property from the first defendant. The first defendant contested the suit contending that he is in possession of only the property obtained by him as per Ext.A1 partition deed. In other words, according to him, the plaint schedule item No.5 property is part of the property obtained by him as per Ext.A1 partition deed. The trial court appointed an Advocate Commissioner to identify the suit properties and also to report as to whether any portion of the plaint schedule item No.1 property is in the possession of the first defendant. The Commissioner deputed by the trial court identified the suit properties with the aid of a Surveyor and filed Ext.C2 report and Ext.C2(a) plan. In Ext.C2 report, the Commissioner has reported that the plaint schedule item No.5 property which is part of the plaint schedule item No.1

¶32

¶33

RSA.No.14/2013.

¶34

property is in the possession of the first defendant. The portion of the plaint schedule item No.1 property which is stated to be in the possession of the first defendant has been shown by the Commissioner in Ext.C2(a) plan as the plot 'PQRO'. Though the trial court dismissed the suit, the appellate court reversed the decision of the trial court and decreed the suit permitting the first plaintiff to recover the plot 'PQRO' shown in Ext.C2(a) plan from the possession of the first defendant. The first defendant, who is aggrieved by the said decision of the appellate court, has thus come up in this second appeal.

¶35

Heard the learned counsel for the appellant as also the learned counsel for the first respondent.

¶36

The learned counsel for the appellant contended that the identification of the suit properties made by the Commissioner is unsustainable. According to the learned counsel, the Commissioner has reported that there is encroachment by the first defendant solely for the reason

¶37

RSA.No.14/2013.

¶38

¶39

that the extent of property now in the possession of the first plaintiff is less. Per contra, the learned counsel for the first plaintiff contended that the identification of the suit property made by the Commissioner is based on the description of the property in the title deed as also in the re-survey records. According to the the learned counsel for the first plaintiff, the re-survey records have not been challenged by the first defendant and therefore, there is no justification in contending that the identification of the suit properties made by the advocate Commissioner is incorrect. The correctness of the identification of the suit properties made by the advocate Commissioner is a pure question of fact. As such, I do not find any justification to interfere with the impugned decision of the appellate court. However, it is revealed from Ext.C2 report that the well attached to the family house allotted to the first defendant as per the partition deed referred to above, is in the property allotted to the first plaintiff. In this context, the learned counsel for

¶40

RSA.No.14/2013.

¶41

¶42

the first plaintiff conceded that the first plaintiff is not particular about recovering the portion of the property in which the well is situated from the first defendant and appropriate orders can be made to enable the first defendant to make use of the well as part of his property.

¶43

In the result, the second appeal is dismissed with the modification that the plot 'PQRO' in Ext.C2(a) plan excluding the well and the minimum property around the well which is required for using the well shall be permitted to be recovered by the first plaintiff. The parties are free to move the execution court for appropriate orders in this regard. All the interlocutory applications in the appeal are closed.

¶44

Sd/- P.B.SURESH KUMAR,

¶45

JUDGE.

¶46

Kvs/-

¶47

// true copy //

¶48

PA TO JUDGE.

Gopalakrishnan Nair v. Sadasivan Nair and Another

Case brief

What is this about?

What did the court decide?

Gopalakrishnan Nair v. Sadasivan Nair and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Chandran A.R. Vs Thanka

John Vs Pappu @ Devassy

Shahul Hameed Vs Sulekha Beevi

P.M.Ummul Faiza Vs Akbar Quarashi

Kalyanikutty Amma Vs Madhavikutty Amma

Yohannan Gregory Vs Xavier Marcily