Remanded

Lalithamma v. Sasidharan

Kerala HC27 Nov 2018RSA/940/2010

Case brief

AI extract

What is this about?

In an appeal against the reversal of a trial court decree declaring title and fixing boundaries, the High Court remanded the matter. It allowed an opportunity to amend the suit to include recovery of possession and ordered a fresh survey commission to ascertain property limits based on old and current survey numbers within four months.

What did the court decide?

The suit is remanded for fresh disposal; allowed to amend suit to include prayer for possession; fresh survey commission ordered within 2 weeks; disposal within 4 months; survey costs shared equally.

Lalithamma Vs Sasidharan — 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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TUESDAY ,THE 27TH DAY OF NOVEMBER 2018 / 6TH AGRAHAYANA, 1940

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RSA.No. 940 of 2010

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AGAINST THE JUDGMENT AND DECREE DATED 12-06-2009 IN AS 93/2005 of ADDITIONAL DISTRICT AND SESSIONS COURT(ADHOC)III, KOLLAM

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AGAINST THE JUDGMENT AND DECREE DATED 26-03-2005 IN OS 66/2001 of MUNSIFF COURT, KARUNAGAPPALLY

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APPELLANT/RESPONDENT/PLAINTIFF:

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P.LALITHAMMA, AGED 65,D/O PANKAJAKSHI, PUTHEN VEETTIL,VARAVILA POST,(VIA)VAVAKKAVU,, CLAPPANA VILLAGE,KARUNAGAPPALLY.

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BY ADV. SRI.B.KRISHNA MANI

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RESPONDENT/APPELLANT/DEFENDANT:

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SASIDHARAN, AGED 50,S/O.SREENIVASAN, KOCHIKALATHIL(KARANGAL)VEEDU,CLITHOOR,PANMANA, VILLAGE,PANMANA.P.O,CHAVARA,KARUNAGAPPALLY.

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BY ADV. SRI.K.SUBASH CHANDRA BOSE

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 940 of 2010 2

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JUDGMENT

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Aggrieved by the reversal of the judgment in O.S.No. 66 of 2001 of the Munsiff's Court, Karunagapally by the Appellate Court (District Court, Kollam) in A.S.No. 93 of 2005, the plaintiff came up with this appeal.

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The suit for declaration of title, fixation of boundary and permanent prohibitory injunction, was decreed by the Trial Court fixing the boundary based on Ext.C2 plan, but it was reversed by the Appellate Court by dismissing the suit.

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The facts of the case is that the plaintiff

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obtained 10 cents of property under Ext.A1 partition dated 16/4/1984, and the said property comprised in Old Survey No.890/(a&b) now situates in re-survey No.118/6 and 7. The Commissioner who visited the property prepared

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Ext.C2 plan, in which, the property belonging to the defendant is shown by giving blue shade. The property owned by the plaintiff is shown by giving yellow shade. The disputed portion was also located by giving yellow shade. An extent of 2.400 cents was found to be in possession of the defendant. But, it is not clear whether

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the surveyor has relied on any co-relation statement in

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RSA.No. 940 of 2010 3

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order to locate and find out the old survey numbers of

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the property in dispute. Further, there is no prayer in the suit for recovery of possession of the trespassed area. At the time of arguments, the learned counsel for the appellant pressed for a remand of the matter to the Lower Court, so as to incorporate a prayer for recovery of possession of the trespassed area, in the light of the report submitted by the Commissioner under Ext.C2 plan. The First Appellate Court found that the said plan was prepared based on Ext.A9, which is a photocopy of the survey plan. No authentic record of survey plan was either produced or brought in evidence. The non production of the co-relation statement is also relevant at this juncture. Hence, for the ends of justice, I am of

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the view that, it is fit and proper to afford an opportunity to the plaintiff to amend the suit by incorporating a prayer for recovery of possession of the trespassed area, if any, and to let out a fresh Commission to find out the respective properties of the plaintiff as well as the defendant, in accordance with

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the title based on the old survey as well as the resurvey.

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Hence, the decree and judgment of the First

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Appellate Court and the Trial Court are hereby set aside.

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RSA.No. 940 of 2010 4

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The matter is remanded back to the Lower Court for fresh

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disposal in accordance with the law in force. The Lower Court shall, on receipt of a copy of this order, issue a fresh survey Commission within 2 weeks, so as to

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ascertain the location of property of the plaintiff and the defendant and to prepare a plan as discussed earlier and a qualified surveyor shall be appointed for assisting the Commissioner and cost of the same shall be borne out by both the parties in equal shares. The Lower Court shall expedite the disposal of the suit at the earliest, within a time schedule of four months from the date of receipt of a copy of this judgment.

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In the result, the appeal allowed in part. The

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matter is remanded back to the Lower Court for fresh disposal. No order as to cost of second appeal. Parties shall appear before the Trial Court on 20/12/2018.

Sd/-

P.SOMARAJAN

JUDGE

//True copy//

P.A.to Judge

msp

Lalithamma v. Sasidharan

Case brief

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Lalithamma v. Sasidharan

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