Dismissed

Surendran Pillai v. Ramachandran Pillai.

Kerala HC18 Jul 2018FAO (RO)/182/2016

Case brief

AI extract

What is this about?

Appeal against a remand order passed in a suit for fixation of boundary. This court held that patent illegality existed as the defendants' properties were not scheduled to the plaint, though no prejudice was caused to the appellant, thus dismissing the appeal and upholding the remand.

What did the court decide?

The appeal was dismissed. The trial court is directed to dispose of the case within six months after affording parties an opportunity to adduce evidence. Pending interlocutory applications were dismis

Surendran Pillai Vs Ramachandran Pillai. — Property and Title | Kerala HC (2018)

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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 A.HARIPRASAD

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WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940

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FAO (RO).No. 182 of 2016

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AGAINST THE JUDGMENT DATED 10-02-2016 IN AS NO.124/2009 of ADDITIONAL DISTRICT COURT-I,MAVELIKKARA

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AGAINST THE JUDGMENT DATED 21-02-2009 IN OS NO.170/2005 of MUNSIFF'S COURT,KAYAMKULAM

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APPELLANT/RESPONDENT/PLAINTIFF

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SURENDRAN PILLAI, S/O. MADAVAN PILLAI, KEEZHALLOOR VEEDU,

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KATTANAM MURI, KATTANAM VILLAGE.

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BY ADVS.SRI.R.SUNIL KUMAR

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SMT.A.SALINI LAL

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RESPONDENT/APPELLANT/DEFENDANT

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RAMACHANDRAN PILLAI,

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S/O. SANKARAKURUP, AATHIRA, MARUTHAVANA VEEDU,

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KATTANAM MURI, KATTANAM VILLAGE.

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GOPALAKRISHNA PILLAI

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S/O. SANKARAKURUP, AATHIRA, MARUTHAVANA VEEDU,

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KATTANAM MURI, KATTANAM VILLAGE.

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R1 BY ADVS.SRI.P.B.SAHASRANAMAN

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SRI.T.S.HARIKUMAR

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 18-07-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.HARIPRASAD, J.

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-------------------------------------F.A.O.(RO) No.182 of 2016

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Dated this the 18^th day of July, 2018

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JUDGMENT

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Heard learned counsel for the appellant and the respondents.

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2. Aggrieved by the order of remand passed by the lower

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appellate court in a suit for fixation of boundary and other reliefs, the plaintiff/appellant has preferred this appeal. It is the case of plaintiff that the property scheduled to the plaint belonged to him by virtue of Exts.A1 and A2 documents. Ext.A3 is the tax receipt produced to show that he is in possession of the property. Ext.B1 is the document produced by the defendants, which is a plaint in O.S.No.294 of 2006 before the Court of Munsiff, Kayamkulam. This document was produced to show that the defendants had challenged the resurvey demarcations. The plaintiff is a party to that suit.

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Learned counsel for the appellant contended that the lower appellate court unsettled the clear findings by the trial court without any valid reason. In paragraphs 13 and 14 of its judgment, the following observations are made by the lower appellate court:

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FAO (RO) No.182/2016

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“13. As stated earlier, defendant's property is not scheduled. Defendant's properties are not measured. Now the question to be considered is, whether there is any ground for the contention of first defendant that the plaint A schedule extent is not correct. DW3 is Head Surveyor of Superintendent office of KALC. Ext.X1 is the area register. This will go to show that an area of 12.50 ares is recorded as 14.20 ares. The explanation of PW1 is that even after final resurvey, there will be adalaths and necessary changes will be made accordingly. If that be so, said proceedings are to be mentioned in the remarks' column. Reference number AC.1/95 is given. He states that AC means area correction. He assumes that 1/95 is adalath number. It is not known, whether

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this change in the area has been effected in the revenue records by giving notice to defendants. He also deposed that entire extent in resurvey No.536 was 1 Hector 66 Ares and 15 Sq. meters. Even now the total extent is same. So it is not known, from where this higher extent of land is given to plaintiff. The

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FAO (RO) No.182/2016

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adjacent northern, southern and western properties are the property of first defendant. So first defendant's doubt that his property has been included in plaintiff's property cannot be said to be without any base.

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14. DW4 is the village officer, Kattanam. He produced Ext.A2 thandaper account. Extent of the plaintiff's property comprised in resurvey No.536/16 is shown as 14.20 ares. Area correction by adalath is shown. But no other documents are produced to show that defendant was given notice. How this change was effected is not known. On which adalath said changes were made is also not known. DW4 also deposed that when this larger extent of 14.20 ares was entered in the thandaper account is not recorded. But the adalath number is given as 1/95. He also deposed that if some other's property is included, this can happen. Ext.X2 will not show the mutation date, when the extent of 3.35 ares was enlarged to 12.50 ares and later to 14.20 ares. Not only that the change has been made, as per the adalath is to be signed by surveyor. No such signature is seen. The evidence so adduced cast

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FAO (RO) No.182/2016

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doubts regarding the revenue records. First defendant has filed Ext.B1 suit regarding his grievance. PW2 has measured the property on the basis of this resurvey plan, even though plaintiff has not produced the said plan. Apart from this fact, commissioner also failed to note any signs of demarcation of boundaries on the southern side of plaintiff's property. So the fixation of boundary on the basis of resurvey plan cannot be accepted. Moreover defendant's property is also not measured. So in order to properly fix the boundaries, remand is necessary. Only by remand, property of plaintiff and property of defendants can be measured. Burden is upon the plaintiff to prove his title over the extent claimed by him. It is also brought to the notice that when the appeal was dismissed for default, there was no stay and at this time delivery was made by fixing the boundary in execution of impugned decree. When impugned decree is set aside, first defendant can approach the lower court for restitution. This means that for proper adjudication, matter is to be remanded by setting aside the judgment and decree.

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FAO (RO) No.182/2016

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At present the reliefs sought for cannot be granted.

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Points are found in favour of first defendant/appellant.”

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Learned counsel for the appellant strongly contended that these aspects have been considered by the trial court in paragraph 9 of its judgment. However, it is pointed out by the learned counsel for the respondents that those are assumptions by the trial Judge without any materials on record.

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The patent illegality pointed out by the lower appellate court is that the properties of contesting defendants have not been scheduled to the plaint. It has been declared by this Court that for fixation of boundary, the properties belonging to both the contesting parties should be scheduled to the plaint so as to have a quietus of the dispute. This condition has been violated. That apart, the records relied on by the parties were examined by the lower appellate court and found that there are glaring inaccuracies in the revenue records relied on by the parties. Having regard to the facts and circumstances, I find no prejudice caused to the appellant/plaintiff if the matter was remanded to the trial court for a proper adjudication with an opportunity to the parties to adduce evidence.

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In the result, the appeal is dismissed. Trial court shall dispose of the case within a period of six months from the date of receipt of a copy of this judgment, after affording a reasonable opportunity to both sides to

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FAO (RO) No.182/2016

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adduce evidence, if they so choose. Parties shall appear before the trial court on 13.08.2018.

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All pending interlocutory applications will stand dismissed.

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A.HARIPRASAD, JUDGE.

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cks

Surendran Pillai v. Ramachandran Pillai.

Case brief

What is this about?

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Surendran Pillai v. Ramachandran Pillai.

Case brief

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