This appeal challenges a judgment dismissing a suit for fixation of property boundaries. The High Court held that since previous litigation regarding property boundaries had resulted in a final judgment establishing clear boundaries, the prayer for fixation was unsustainable and barred.
Appeal dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941
RFA.No.552 OF 2008
AGAINST THE ORDER/JUDGMENT IN OS 229/2001 OF PRINCIPAL S.C.,THALASSERY DATED 24/08/2007
APPELLANT/PLAINTIFF:
1 PARAPPURATH KADAVATHAN POKKER HAJI S/O.AMMED, AGED 79 YEARS, AGRICULTURIST, KOLAVALLOOR AMSOM AND DESOM, P.O.THOOVAKUNNU, THALASSERI TALUK.(DIED)*
2 PARAPPURATH KUNHAMI HAJJUMMA
W/O POKKER HAJI, AGED 68 YEARS, THAZHEPARAMMAL HOUSE, KOLAVALLOOR AMSOM AND DESOM , P.O THOOVAKUNNUU, THALASSERY TALUK.
5 P P AYISHA
D/O POKKER HAJI, AGED 42 YEARS, THAZHEPARAMMAL HOUSE, KOLAVALLOOR AMSOM AND DESOM , P.O THOOVAKUNNUU, THALASSERY TALUK.
6 P AHAMMED S/O POKKER HAJI, AGED 38 YEARS, THAZHEPARAMMAL HOUSE, NO OCCUPATION,KOLAVALLOOR AMSOM AND DESOM , P.O THOOVAKUNNUU, THALASSERY TALUK.
8 P P SAINABA D/O POKKER HAJI, AGED 26 YEARS, THAZHEPARAMMAL HOUSE, NO OCCUPATION,KOLAVALLOOR AMSOM AND DESOM , P.O THOOVAKUNNUU, THALASSERY TALUK.
( LEGAL HEIRS OF DECEASED APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 8 AS PER ORDER DATED 2/12/2014 IN IA 2702/2014.)
BY ADVS.SRI.K.V.PAVITHRAN
SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL
RESPONDENTS/DEFENDANTS:
2 MADATHIL YOOSUFF S/O.MOOSA, AGED 40 YEARS, MADATHIL HOUSE, KOLAVALLOOR AMSOM AND DESOM, P.O.THOOVAKUNNU, THALASSERI TALUK, KANNUR DISTRICT
R1 BY ADV. SRI.V.R.KESAVA KAIMAL R1 BY ADV. SRI.N.M.MADHU
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA.No.552 OF 2008
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JUDGMENT
Dated this the 15th day of October, 2019
This appeal is directed against the judgment dated 24.08.2007 in O.S. No.229/2001 of Subordinate Judge's Court, Thalasseri. The appellant is the plaintiff and the respondents are the defendants in the suit. Plaint A schedule properties belongs to plaintiff. Item No.1 was acquired by him as per document No.1657/1963 dated 09.09.1963 and item No.2 as per deed No.1715/1970 dated 10.11.1970 of SRO Panoor. Plaintiff obtained jenmom right as per purchase certificate No.773 of 1976 of Land Tribunal, Kuthuparamba. The properties are lying contiguous.
property. Raising allegation that defendants are attempting to demolish the boundaries of his property, O.S. No.370/03 was filed seeking for permanent injunction and a decree was obtained. The
plan (Ext.A8) prepared by the Advocate Commissioner in the case was ordered to be made a part of the decree.
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No.452/99 against the plaintiff before the Munsiff's Court, Kuthuparamba. The suit was filed on the basis of a gift deed executed in her favour during the pendency of O.S. No.370/03. Suit was filed on the basis of Ext.C3 plan prepared in O.S. No.370/03. According to him, the plan is a mistaken one and taking advantage of the mistake alongwith other defendants, 4th defendant attempted to trespass into the plaint schedule property. Ext.C3 plan produced in O.S. No.370/93 being wrong, he seeks for declaration in the suit on hand that it is wrong. He also seeks for consequential injunction restraining the defendants from trespassing into the plaint schedule property and also for fixation of boundaries of plaint schedule property.
Rule 2 of Code of Civil Procedure (for short 'CPC').
“1. Whether the suit is barred by res judicata ?
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RFA.No.552 OF 2008
plaint is allowable ?
Order II Rule 2 CPC and in the absence of a challenge by defendant that finding has become final. Issue No.3 was not dealt with and answered by the trial court for the reason that the declaratory relief was abandoned by the plaintiff at the time of hearing of the case by making necessary endorsement to the effect. O.S. No.370/03 was decreed relying on Ext.C3 plan prepared and marked in evidence therein. The judgment in the suit in view of the non-challenge has become final. The cause of action in the suit on hand was the revelation of the plaintiff in the
year 2001 that Ext.C3 is incorrect. Since a finding based on Ext.C3 was arrived at as early as on 1993 and in view of the finality of the finding reached due to non-challenge, the prayer evenif not abandoned, was unsustainable. Challenge, if any, on the correctness of Ext.C3 ought to have been raised during trial
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stage of O.S. No.370/03 itself and settled then and there, where its reliance was sought.
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the effect that the plaint schedule property therein was bounded by clear marked boundaries. If that be so, there is no basis in seeking for fixation of boundaries of the plaint scheduled properties. The trial court has correctly found accordingly in the impugned judgment.
In the result, appeal is dismissed. No order as to costs.
Sd/-
MARY JOSEPH
JUDGE
ttb
3 issues framed by the court
Whether the suit for fixation of boundaries is barred by Order II Rule 2 CPC due to finality of the judgment in O.S. No.370/03.
Whether the plaint schedule property is already bounded by clear marked boundaries as established in previous litigation.
Whether there is a cause of action to seek fixation of boundaries when boundaries were already determined by res judicata.
PARAPPURATH KADAVATHAN POOKKER HAJI (DIED) and others
AYISHU HAJUMMA and others
MARY JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
