Dismissed

Alakkat Kunhangadan Ramachandran v. Sreemathy

Kerala HC15 Mar 2016RSA/151/2016

Case brief

AI extract

What is this about?

This court dismissed a second appeal where the primary impugned order was the dismissal of the first appeal due to excessive delay. Finding no illegality in the lower appellate court's rejection of the condonation application and no merit in the trial court's boundary fixation, the appeal was rejected.

What did the court decide?

The second appeal was dismissed, upholding the impugned orders.

Alakkat Kunhangadan Ramachandran Vs Sreemathy — 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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TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937

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RSA.No. 151 of 2016 (B)

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AGAINST THE JUDGMENT AND DECREE IN A.S.NO.78/2014 OF SUB COURT, KANNUR DATED 15-09-2015

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AGAINST THE JUDGMENT IN O.S.NO.233/2002 OF PRINCIPAL MUNSIFF COURT, KANNUR DATED 29-08-2005

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APPELLANT(S)/APPELLANT/PLAINTIFF :

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ALAKKAT KUNHANGADAN RAMACHANDRAN

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S/O.KORAN, AGED 72 EYARS, NO OCCUPATION, LAKSHMI NILAYAM, NEAR CALTEX JUNCTION, KANNUR - 670 002.

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BY ADV. SRI.V.RAMKUMAR NAMBIAR

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS :

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1. SREEMATHY, W/O.LATE CHEMMERY KARUNAKARAN, AGED 73 YEARS, NO OCCUPATION, LAKSHMI NILAYAM, NEAR CALTEX JUNCTION, KANNUR - 670 002.

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2. CHEMMERI KAUSALYA, D/O.JANAKI, AGED 78 YEARS, NO OCCUPATION, LAKSHMI NILAYAM, NEAR CALTEX JUNCTION, KANNUR - 670 002.

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3. CHEMMERI VASANTHI, D/O.KAUSALYA, AGED 61 YEARS, NO OCCUPATION, LAKSHMI NILAYAM, NEAR CALTEX JUNCTION, KANNUR - 670 002.

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4. K.KAMALAM, FATHERS NAME NOT KNOWN, AGED 71 YEARS, NO OCCUPATION, PARAYIL HOUSE, NEAR CALTEX JUNCTION, KANNUR - 670 002.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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P.B.SURESH KUMAR, J.

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R.S.A.No.151 of 2016

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-----------------------------------------------Dated this the 15^th day of March, 2016

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JUDGMENT

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The plaintiff in the suit is the appellant.

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The plaint schedule property belongs to the

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plaintiff. The case of the plaintiff is that the defendants who

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own property on the west of the plaint schedule property have encroached upon a portion of the plaint schedule property and erected a boundary wall. The reliefs claimed in the suit, in the circumstances, were a decree for fixation of the western boundary of the plaint schedule property and for a mandatory injunction directing the defendants to remove the wall constructed by them. The defendants resisted the suit. According to them, they have not

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R.S.A.No.151 of 2016

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encroached upon any portion of the plaint schedule property and that the compound wall is constructed on the exact boundary separating the properties. The Advocate Commissioner deputed for local inspection in the suit filed Ext.C1 report and C2 plan. On a consideration of the materials on record, the trial court found that the boundary wall is situated on the exact boundary of the plaint schedule property and therefore, the plaintiff is not entitled to the decree of mandatory injunction sought by him. However, since the plaintiff sought for a decree for fixation of the western boundary of the plaint schedule property, the trial court passed a decree fixing the line EFGA in Ext.C2 plan as the western boundary separating the plaint schedule property from the property of the defendants. The decision of the trial court was rendered on 29.8.2005. After about 8 years, the plaintiff preferred an appeal challenging the decision of the trial court with a petition seeking orders to

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R.S.A.No.151 of 2016 3

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condone the delay of 3438 days in filing the appeal. The reason stated by the plaintiff for long delay of 3438 days was that the decision of the trial court was not informed to him by his counsel Sri.M.Karunakaran Nambiar and that he came to know of the decision of the trial court only during 2014. The appellate court took the view that the said reason cannot be accepted as a sufficient cause for the long delay of 3438 days in filing the appeal. Consequently, the appeal was dismissed. The plaintiff, who is aggrieved by the concurrent decisions against him, has thus come up in this second appeal.

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Heard the learned counsel for the appellant.

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As noted above, the appeal preferred by the plaintiff

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was not decided on merits. Instead, the appeal was dismissed consequent on the dismissal of the application filed by the appellant for condonation of the delay in filing the appeal. As noted above, the extent of delay sought to be

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R.S.A.No.151 of 2016 4

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condoned is 3438 days. The only reason stated by the appellant for the long delay of 3438 days is that his counsel did not inform him about the disposal of the suit by the trial court. The appellate court took the view that the said reason cannot be accepted as a sufficient cause for the long delay of 3438 days. I do not find any illegality in the view taken by the appellate court. Further, on a close examination of the materials on record, I do not find any illegality in the decision of the trial court as well. In the circumstances, the appeal is devoid of merits and the same is accordingly, dismissed.

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P.B.SURESH KUMAR, JUDGE.

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smm

Alakkat Kunhangadan Ramachandran v. Sreemathy

Case brief

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Alakkat Kunhangadan Ramachandran v. Sreemathy

Case brief

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