Remanded

A.T.Philipose v. G.Vasudevan Nair

Kerala HC4 Jan 2017RSA/1117/2005

Case brief

AI extract

What is this about?

In a regular second appeal regarding a property suit involving trespass and injunctions related to the Periyar Valley Irrigation Project, the High Court held that prior commission reports were insufficient. The judgment remitted the matter to the trial court for a fresh survey based on the official Acquisition Plan.

What did the court decide?

The judgments and decrees of courts below were set aside and the matter remitted to the trial court to dispose of the original suit afresh.

A.T.Philipose Vs G.Vasudevan Nair — Property and Title | Kerala HC (2017)

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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 K.HARILAL

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WEDNESDAY, THE 4TH DAY OF JANUARY 2017/14TH POUSHA, 1938

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RSA.No. 1117 of 2005 (G)

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AGAINST THE JUDGMENT & DECREE DATED 26-07-2005 IN AS.127/2004 of ADDL. DISTRICT COURT, NORTH PARAVUR

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AGAINST THE JUDGMENT & DECREE DATED 26-05-2004 IN OS.645/1997 of MUNSIFF COURT, PERUMBAVOOR

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APPELLANT/IST RESPONDENT/1ST DEFENDANT:

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A.T.PHILIPOSE, AGED 53, AIKUPURATH HOUSE, MANNOOR, AIRAPURAM VILLAGE KUNNATHUNADU TALUK.

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BY ADVS.SRI.V.RAJENDRAN PERUMBAVOOR SRI.GEORGE VARGHESE KIZHAKKAMBALAM

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RESPONDENT(S)/APPELLANTS 1 TO 14 AND RESPONDENTS 2 AND 3/ PLAINTIFFS 1 TO 4 AND 6 TO 15 AND DEFENDANTS 2 AND 3:

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1. G.VASUDEVAN NAIR, S/O.GOVINDAPILLAI, GOVERNMENT SERVICE, KUNNAPPILLIL, MANNOOR, AIRAPURAM VILLAGE.

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2. G.SREEDHARAN, S/O.GOVINDA PILLAI, KUNNAPPILLIL, MANNOOR, AIRAPURAM VILLAGE.

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3. GOURIKUTTY AMMA, W/O.NEELAKANDAPPILLAI, KUNNAPPILLIL, MANNOOR, AIRAPURAM VILLAGE.

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4. K.RAMADEVI, W/O.M.S.MOHAN, DO,. DO. NOW RESIDING AT MUTTATHUMALI, NEDUMBATHODE VENGOLA VILLAGE.

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5. M.T.GEORGE, S/O.THOMAS, MANJOOR PUTHEN PURA, PULLUVAZHY, RAYAMANGALAM VILLAGE.

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6. GOPINATHAN NAIR, S/O.GOVINDAPILLAI, KUNNAPPILLIL HOUSE, MANNOOR, AIRAPURAM VILLAGE.

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7. INDIRA BAI, D/O.GOVINDAPILLAI, DO. DO.

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8. G.VIJAYAKUMAR, S/O.GOVINDAPILLAI, DO. DO.

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....2/-

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RSA.No. 1117 of 2005 (G) -2-

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9. G.VENUGOPAL S/O.GOVINDA PILLAI, KUNNAPPILLIL HOUSE, MANNOOR AIRAPURAM VILLAGE

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10. G. NARAYANAN NAIR S/O.GOVINDA PILLAI DO.. DO..

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11. J.RETHAMMA W/O.LATE CHANDRASEKHARAN NAIR, KUNNAPPILLIL HOUSE MANNOOR, AIRAPURAM VILLAGE

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12. R.SANTHINI D/O.CHANDRASEKHARAN NAIR, DO.. DO..

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13. C.MAHESH S/O.LATE CHANDRASWEKHARAN NAIR, DO.. DO..

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14. C.RAJESH S/O.LATE CHANDRASEKHARAN NAIR, DO.. DO.

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15. EXECUTIVE ENGINEER P.V.I.P. PATTAL, PERUMBAVOOR

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16. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM.

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R1 TO R14 BY ADVS. SRI.VAKKOM N.VIJAYAN

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SMT.VINITHA PRASANNAN

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SRI.P.ANIYAN SMT.REENA.C.STEPHEN SRI.A.S.SACHIN

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R15 & R16 BY GOVERNMENT PLEADER SRI.K.M.HASHIR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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R.S.A. No.1117 of 2005

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Dated this the 4^th day of January, 2017

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JUDGMENT

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~ ~ ~ ~ ~ ~ ~

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The appellant is the first defendant and respondent Nos.15 and 16 are defendant Nos.2 and 3 in

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O.S.No.645/1997 of the Munsiff's Court,Perumbavoor. The respondent Nos. 1 to 14 are the plaintiffs in the suit. The above suit was filed by the respondents on the allegation that the defendants in the suit trespassed upon a portion of plaint A schedule property on the western side, in the course of an attempt to widen the eastern canal bund of the Periyar Valley Irrigation Project, passing through the western side of plaint A schedule property. Thus, the case of the plaintiffs is that the defendants forcefully trespassed

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upon a portion of their property and encroached the existing canal bund illegally and thereby caused damages to A schedule property. Hence the suit was filed for a

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RSA.1117/05 :2:

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mandatory injunction to restore the lie of A schedule property to its original position and also for damages and consequential permanent prohibitory injunction.

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The first defendant denied all the allegations made against him to the effect that he has trespassed upon plaint A schedule property and destroyed retaining wall, etc. According to him, the claim of damage is also unsustainable. Further, the first defendant contended that the plaintiffs are claiming right and possession over the property, which was acquired and taken in possession by the Government for the formation of Periyar Valley Irrigation Project. After trial, the trial court dismissed the suit with cost to the defendants, by the judgment dated 26.5.2004. Feeling aggrieved the plaintiffs preferred Appeal Suit No.127/2004 before the Additional District Court, North Paravur. After reappreciating the evidence on record the lower appellate court set aside the judgment and decree passed by the trial court and decreed the suit in part. The lower appellate court, by the impugned decree,

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RSA.1117/05 :3:

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passed a permanent prohibitory injunction restraining the defendants from causing any obstruction to peaceful user and enjoyment of the plaint A schedule property, noted as A and C blocks in Ext.C2(a) Plan, and from making any kind of obstruction to the restoration of the well in plaint A schedule property by the plaintiffs and also in putting a boundary wall or any safe structures in A schedule property by the plaintiffs. This Regular Second Appeal is filed challenging the decree and judgment passed by the lower appellate court, on various grounds.

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Heard the learned counsel for the appellant, the learned counsel for the respondents and the learned Government Pleader.

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The sum and substance of the arguments advanced by the learned counsel for the appellant is that the suit was decreed in part by passing a prohibitory injunction restraining the defendants from obstructing the user of plaint A schedule property noted as A and C blocks in Ext.C2(a) plan on the basis of Exts.C1 & C2 commission

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RSA.1117/05 :4:

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reports, C1(a) rough sketch and C2(a) survey plan. According to the learned counsel for the appellant, no reliance can be placed on the aforesaid commission reports and plan, which were prepared by the Commissioner on the basis of the plaint averments, and the learned counsel for the appellant drew my attention to the commission reports wherein the Commissioner has specifically stated that he has not measured the plaint schedule property on the basis of the Periyar Valley Acquisition Plan, because the same was not made available to him by the plaintiffs who filed an application seeking measurement of the property on the basis of the said plan also. Going by the commission report, it could be seen that the Commissioner has not disclosed the basis on which he measured and prepared the plan. In view of Ext.C1 report, it could be reasonably presumed that the same was measured on the basis of the resurvey plan.

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The question in controversy involved in the suit revolves around the extent of property acquired from A

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RSA.1117/05 :5:

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schedule property for the formation of Periyar Valley Canal Irrigation Project. So the said question can be resolved on the basis of a commission report and plan prepared on the basis of the Periyar Valley Acquisition Plan only.

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Going by the records, it could be seen that the Government Pleader has produced the Periyar Valley Acquisition Plan after the preparation and submission of the commission reports before the court. Thus, no purpose was served by production of Ext.X1 Periyar Valley Acquisition Plan filed before the court, after submitting the commission reports and plan. This Court finds that the matter in dispute requires consideration afresh after getting a fresh report and plan, which have to be prepared on the basis of Ext.X1 Periyar Valley Acquisition Plan produced before the trial court.

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In the above view, the judgments and decrees passed by the courts below are set aside and the matter is remitted back to the trial court. The plaintiffs shall take steps to measure the property so as to find out the extent

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RSA.1117/05 :6:

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of property acquired on the basis of Ext.X1 Periyar Valley Acquisition Plan for Periyar Valley Project and after obtaining a report and plan the trial court shall dispose the Original Suit afresh, after affording an opportunity of being heard to both parties. Needless to say, all parties are at liberty to adduce further evidence, if they want to do so. The parties shall appear before the trial court on 01.03.2017.

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All pending interlocutory applications will stand closed.

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K.HARILAL, Judge.

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okb

A.T.Philipose v. G.Vasudevan Nair

Case brief

What is this about?

What did the court decide?

A.T.Philipose v. G.Vasudevan Nair

Case brief

What is this about?

What did the court decide?

What the court decided

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