Remanded

Pilathottathil Meethal Chandri v. Pilathottathil Gopalan

Kerala HC22 Nov 2018RSA/410/2005

Case brief

AI extract

What is this about?

Appellant appealed against decree dismissing suit for boundary fixation. Supreme Court held parties with common title bound by earlier decree fixing eastern boundary. Appeal allowed; decree set aside and matter remanded for fresh disposal.

What did the court decide?

Impugned judgments and decrees of Trial Court and First Appellate Court set aside. Matter remanded to Trial Court for fresh disposal in accordance with binding earlier decree.

Pilathottathil Meethal Chandri Vs Pilathottathil Gopalan — Partition | 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 P.SOMARAJAN

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THURSDAY, THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940

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RSA.No. 410 of 2005 (F)

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AGAINST THE JUDGMENT AND DECREE DATED 02.02.2005 IN AS No.19/1999 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA

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AGAINST THE JUDGMENT AND DECREE DATED 19.12.1998 IN OS No.2/1994 of MUNSIFF MAGISTRATE COURT, PAYYOLI

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APPELLANT/APPELLANT IN AS/PLAINTIFF IN OS:

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PILATHOTTATHIL MEETHAL CHANDRI, D/O. KUNHIKANNAN, AGED 35 YEARS, OWN AFFAIRS, RESIDING AT KUNIYELOTE, THIRUVALLUR AMSOM, VATAKARA TALUK.

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BY ADVS.SRI.N.L.KRISHNAMOORTHY SMT J.N.NISHA SMT.SATHYA SHREEPRIYA SRI.K.LAKSHMINARAYANAN

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RESPONDENT/RESPONDENT IN AS/DEFENDANT IN OS:

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PILATHOTTATHIL GOPALAN, S/O. KUNHIRAMAN, AGED ABOUT 38 YEARS, RESIDING AT THIRUMANACHATTIL, LABOURER, THIRUVALLUR AMSOM, VATAKARA TALUK.

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BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

R.S.A.No.410 of 2005

JUDGMENT

Against the judgment and decree in A.S.No.19/99 on the file

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of Additional District and Sessions Judge, Vadakara, the plaintiff came up with this appeal.

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Originally the suit was for fixation of boundary and

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later on it was amended by incorporating a prayer for recovery of possession and injunction. The dispute is pertaining to the property originally owned by one Kalliani as per Exhibit A1 document which is scheduled in the plaint as 'A' schedule. Out of the large extent of 'A' schedule, some portion of property having an extent of 6.2 Ares was given to the plaintiff by Kalliani under Exhibit A2 on 21.05.1985. On the same day, southern part of the said property was given to Cheeru under Exhibit A10. The remaining portion of the northern plot was given to Suma under Exhibit B7, dated 26.10.1990. The defendant

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purchased the same from Suma under Exhibit B8, dated 19.11.1990. The plaintiff filed the suit for fixation of

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boundary, for recovery of the disputed plot which is scheduled

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in the plaint as 'B' schedule and also for permanent prohibitory injunction.

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R.S.A.No.410 of 2005

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In the suit, Exhibit C3 plan was prepared by the

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Commissioner who was deputed for measuring out the property with the help of a Surveyor. Exhibit C3 plan was accepted by

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both the Trial Court as well as the Appellate Court and

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dismissed the suit on a finding that there is no necessity to fix the boundary between the properties of plaintiff and the defendant. Aggrieved by the said decree and judgment, the plaintiff came up with this appeal.

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The questions came up for consideration are:

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(i) Whether the persons litigating under a common

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predecessor who obtained various plots are bound by the boundary fixed for a large extent of property forming part of their plots, in an earlier suit?

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(ii) Whether the Trial Court and the First Appellate Court

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are justified in altering the boundary fixed for a large extent of property in an earlier suit for the purpose of fixing boundaries of different part of that large extent?

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Prima facie it appears that when there is no boundary

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separating the property of plaintiff and the defendant and when

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there is admission regarding the title obtained by the

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respective parties, it is not at all proper to dismiss the suit simply on the reason that there is no necessity to fix the

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R.S.A.No.410 of 2005

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boundary. But, in the present case, the Commissioner, who visited the property at the first instance and prepared Exhibits C1 and C2, had reported the existence of granite wall to the extent of having a height of two feet across the 'PU' line in Exhibit C1 plan. 'PU' line is exactly the line which demarcates the plot Nos.L and K as noted in Exhibit C3 plan. It is the case advanced by the plaintiff that the granite wall was subsequently constructed. It is also brought to the notice of this Court that before the alienation made by the original owner Kalliani, she is a party to an earlier suit by which the boundary of the entire 'A' schedule property was fixed under Exhibit B5 decree. It is an admitted case that as per Exhibit B5 decree, the eastern boundary line of the entire 'A' schedule would constitute 'AB' line. But in order to locate the property of plaintiff instead of relying on 'AB' line, the Commissioner has relied on 'GF' line which is situated further east to 'AB' line. So, according to the plaintiff, there is a shifting of their boundary by relying on 'GF' line by the Commissioner. It

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is also submitted that the Commissioner ought to have located the property based on 'AB' line as per Exhibit B5 decree.

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On the other hand, the case advanced by the defendant is that he had constructed a well on the property which is in

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R.S.A.No.410 of 2005

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his possession and also constructed a granite wall separating the said property from that of the plaintiff. The Commissioner located the well as well as the granite wall in Exhibit C1 plan. The granite wall, as discussed earlier, would pass

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through 'PU' line, as per Exhibit C1. It is true that though there is construction of wall and construction of a well in the property, since the predecessor-in-interest of both the parties - Kalliani - had suffered a decree under Exhibit B5 by fixing

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the eastern boundary as 'AB' line, the persons who are litigating under the same title are also bound by the said decree. If that be so, the boundary of property of the plaintiff and all other persons who had obtained title over any portion of property from Kalliani has to be located based on 'AB' line and not on 'GF' line. That has not been done by the Commissioner in the present case. The defendant has not raised any question of adverse possession or limitation. Going by Exhibit B5 decree, which has attained finality and became conclusive, it is not at all permissible to reopen the same either by Kalliani or by any of the persons litigating under

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her title over the property. In short, the persons who had obtained portions of property belonging to Kalliani, that is

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out of 'A' schedule, are also bound by Exhibit B5 decree,

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wherein the eastern boundary was categorically fixed as 'AB' line. So, the measurement conducted based on 'GF' line cannot be accepted. There is a fatal mistake in the judgment rendered by both the Trial Court as well as the First Appellate Court by relying on 'GF' line instead of 'AB' line. The property has to be located by relying on Exhibit B5 decree and the plan annexed thereto. For that purpose, the decree and judgment of both the Trial Court and the First Appellate Court are hereby set aside.

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The matter is remanded back to the Trial Court for fresh disposal in accordance with law and the Trial Court shall consider the decree passed in Exhibit B5, the possession of respective parties over the property and also the construction of structures, untrammelled by any of the observations contained in this judgment. Both the parties are directed to suffer their respective cost of appeal.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Pilathottathil Meethal Chandri v. Pilathottathil Gopalan

Case brief

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Pilathottathil Meethal Chandri v. Pilathottathil Gopalan

Case brief

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