Allowed

Madhavan v. Suresh

Kerala HC5 Feb 2018RSA/924/2017

Case brief

AI extract

What is this about?

This Second Regular Appeal concerns a property suit decidsequently dismissed by the District Judge. The Kerala High Court held that the District Judge erred in deciding the case without examining the Commissioner's plan regarding property boundaries. The appeal was allowed, the impugned decree set aside, and the matter remitted to the trial court for fresh determination.

What did the court decide?

The appeal is allowed, the impugned decree is set aside, and the matter is remitted to the trial court for fresh determination with a four-month timeline for disposal.

Madhavan Vs Suresh — 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 A.HARIPRASAD

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MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939

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RSA.No. 924 of 2017 B

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AGAINST THE JUDGMENT AND DECREE DATED 22-06-2017 IN AS 56/2015 of DISTRICT COURT,THODUPUZHA.

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AGAINST THE JUDGMENT AND DECREE DATED 29-10-2012 IN OS 286/2007 of MUNSIFF'S COURT, THODUPUZHA.

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APPELLANT/1ST RESPONDENT/PLAINTIFF :

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MADHAVAN, S/O. KALA, AGED 73 YEARS, VALLLKKATRJL HOUSE, PANNOOR KARA, UDUMBANNOOR VILLAGE, THODUPUZHA.

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BY ADV.SRI.RAJIT.

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RESPONDENTS/1ST APPELLANT & RESPONDENTS 2 TO 6/ 6TH DEFENDANT & DEFENDANTS 1 TO 5 :

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1. SURESH,

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S/O. MADHAVAN, AGED 49 YEARS,

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RESIDING AT CHETTIYANAPURATHU HOUSE,

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PANNOOR KARA, UDUMBANNOOR VILLAGE,

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THODUPUZHA TALUK-665 595.

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2. RAJEEV,

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S/O. DAMODARAN, AGED 43 YEARS, KOLATH HOUSE, UDUMBANNOOR P.O, UDUMBANNOOR VILLAGE 685 595.

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3. JUSTINE,

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S/O. AUGUSTINE, AGED 39 YEARS,

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KAKANATTU HOUSE, THOTTAKARA, (PANDAPPALLY P.O), ARAKKUZHA VILLAGE, MUVATTUPUZHA- 686 661.

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4. USHA, W/O. SIVAN, AGED 41 YEARS, VARIKKANICKAL HOUSE, MULAPPURAM KARA, KARIMANNOOR VILLAGE 685 581.

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5. JINSON,S/O. AUGUSTINE, AGED 43 YEARS, KAKKANATTU HOUSE, THOTTAKKARA, ARAKKUZHA VILLAGE, MOOVATTUPUZHA 686 661.

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RSA.No. 924 of 2017 -2-

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6. K.M. SCARIA,

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S/O. MATHAI, AGED 70 YEARS, KONNANAL HOUSE, PANNOOR P.O,

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UDUMBANNOOR VILLAGE 685 595.

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R1 BY ADVS. SRI..MATHEW JOHN (K)

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SRI.DOMSON J.VATTAKUZHY (CAVEATOR).

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.HARIPRASAD, J.

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R.S.A No.924 of 2017

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Dated this the 5th day of February, 2018

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J U D G M E N T

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Heard the learned counsel for the appellant and first

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respondent. In spite of serving notice, other respondents did not choose to

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appear.

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Plaintiff is the appellant in this appeal. The suit is one for

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fixation of northern boundary of plaint A schedule property, recovery of

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possession of plaint B schedule property after declaring the title of the

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plaintiff over the same. Further, the defendants are sought to be restrained

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by a permanent prohibitory injunction. The trial court decreed the suit as

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R.S.A No.924 of 2017 2

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the defendants 2 to 5 remained ex parte. Even though the first defendant

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(first respondent) filed a written statement, later he did not appear before

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the court and he was set ex parte.

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Sixth defendant in the suit preferred A.S No.56 of 2015 before

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the Court of District Judge, Thodupuzha. The lower appellate court

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allowed the appeal and dismissed the suit against which the plaintiff has come up in appeal.

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Learned counsel for the appellant and the first respondent

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contended that the appellate court on assumptions refused to accept the

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Commissioner's report and dismissed the suit by reversing the judgment

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and decree of the trial court. Complaint against the decree passed by the

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lower appellate court is that despite specific contentions have been raised

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by the appellant in support of the Commissioner's report, that was repelled

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without assigning valid reasons. Not only that, the first respondent though

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R.S.A No.924 of 2017 3

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filed a written statement, he did not substantiate his case. Learned counsel

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for the appellant contended that in the light of the findings by the

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appellate court, it should have remanded the case back to the trial court

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since there was no contra evidence to disapprove the case of the plaintiff.

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Having regard to the facts and circumstances, I find that the

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appellate court committed an error in deciding the case without

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examining correctness of the Commissioner's plan and report which was

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taken out to identify the properties. Both sides request for a remand to the

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trial court since the parties wanted to bury their disputes by properly

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identifying the property.

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In the result, the appeal is allowed. The impugned decree and judgment passed by the District Judge, Thodupuzha, in A.S No.56 of 2015

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is hereby set aside. The matter is remitted back to the trial court for a fresh

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determination after affording the parties an opportunity to adduce

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R.S.A No.924 of 2017 4

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evidence and if necessary, file an objection to the Commissioner's report

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and plan.

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The parties shall appear before the court below on 01-03-2018. The

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trial court shall dispose of the case within a period of four months.

SD/A. HARIPRASAD,

JUDGE.

amk

//TRUE COPY//

P.A TO JUDGE

Madhavan v. Suresh

Case brief

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Madhavan v. Suresh

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