Partly allowed

Mariam, v. Kurian Mathew (Died)

Kerala HC24 Jul 2019RSA/1173/2004

Case brief

AI extract

What is this about?

The court held that when parties claim title under the same parental partition document, property must be located including the entire large extent to fix boundaries. Since the lower courts failed to locate the large extent and fix boundaries, the appeals were allowed in part, and the matter remanded for fresh survey and disposal.

What did the court decide?

Appeals allowed in part; decrees of courts below set aside; matter remanded to Trial Court for fresh survey and disposal; parties to appear by 22/08/2019.

Mariam, Vs Kurian Mathew (Died) — Partition | Kerala HC (2019)

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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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WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941

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RSA.No.1260 of 2004

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AGAINST THE JUDGMENT AND DECREE DATED 19-12-2003 IN AS 105/1999 of ADDITIONAL DISTRICT COURT,KOTTAYAM

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AGAINST THE JUDGMENT AND DECREE DATED 29-09-1998 IN OS 72/1985 of MUNSIFF COURT, ETTUMANOOR

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APPELLANTS/APPELLANTS/DEFENDANTS:

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1 MANI, S/O MARIAM AND VARKEY, VELUTHEDATHUPARAMBIL, OMALOOR KARA, MANJOOR VILLAGE, KOTTAYAM.

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2 MATHAI, S/O. MARIAM AND VARKEY, VELUTHEDATHUPARAMBIL, OMALOOR KARA, MANJOOR VILLAGE, KOTTAYAM.

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3 MARIAM, W/O. VARKEY, CHRISTIAN, RESIDING AT VELUTHEDATHUPARAMBIL, OMALOOR KARA, MANJOOR VILLAGE, KOTTAYAM.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENT/RESPONDENT/PLAINTIFF:

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MATHEW KURIAN, S/O KURIAN MATHEW, MAMTHOTTATHIL HOUSE, OMALOOR KARA MANJOOR VILLAGE, KOTTAYAM REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KURIAN MATHEW, MAMTHOTTATHIL HOUSE, OMALOOR KARA.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2019, ALONG WITH RSA.1173/2004, RSA.1225/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[RSA 1173/2004,RSA.1225/2004,RSA.1260/2004] 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

¶19

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941

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RSA.No.1173 OF 2004

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AGAINST THE JUDGMENT AND DECREE DATED 19-12-2003 IN AS 104/1999 of ADDITIONAL DISTRICT COURT,KOTTAYAM

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AGAINST THE JUDGMENT AND DECREE DATED 29-09-1998 IN OS 77/1989 of MUNSIFF COURT, ETTUMANOOR

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APPELLANTS/APPELLANTS/DEFENDANTS:

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1 MARIAM, W/O VARKEY, CHRISTIAN, RESIDING AT VELUTHEDATHUPARAMBIL, OMALOOR KARA, MANJOOR VILLAGE, KOTTAYAM.

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2 MATHAI, S/O.MARIAM AND VARKEY, VELUTHEDATHUPARAMBIL, OMALOOR KARA, MANJOOR VILLAGE, KOTTAYAM.

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3 MANI, S/O.MARIAM AND VARKEY, VELUTHEDATHUPARAMBIL, OMALOOR KARA, MANJOOR VILLAGE, KOTTAYAM.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENTS/RESPONDENTS/PLAINTIFFS:

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*1 KURIAN MATHEW MANTHOTTATHIL HOUSE, OMALOOR KARA, MANJOOR VILLAGE, KOTTAYAM.(DIED)

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*2 MATHEW THRESIAMMA MAMTHOTTATHIL HOUSE,OMALOOR KARA, MANJOOR VILLAGE, KOTTAYAM.(DIED)

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3 MATHEW KURIAN, S/O.KURIAN MATHEW, AMTHOTTATHIL HOUSE, OMALOOR KARA, MANJOOR, VILLAGE, KOTTAYAM REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KURIAN MATHEW, MAMTHOTTATHIL HOUSE,

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OMALOOR KARA, MANJOOR VILLAGE, KOTTAYAM.

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[RSA 1173/2004,RSA.1225/2004,RSA.1260/2004] 3

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ADDL R4 TO R8 IMPLEADED

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*ADDL.RESPONDENTS

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4 GEORGE MATHEW, INSTRUMENTATION LIMITED, KANJIKKODE P.O., PALAKKAD.

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5 JOSEPH MATHEW, MANTHOTTATHIL HOUSE, OMALLOOR KARA, KANJIRATHANAM P.O.

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6 VALSAMMA MATHEW, UDUMBEL HOUSE, KUMMANNOOR P.O., CHERPUNKAL (VIA).

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7 CICILIAMMA MATHEW, KALAPPURACKAL HOUSE, KURIAM P.O., KOTTAYAM.

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8 SELINAMMA MATHEW, ELANJILATTU, NAZRETH HILL P.O., NEAR KANIYODI.

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(THE 3RD RESPONDENT IS RECORDED AND ADDL.RESPONDENTS 4 TO 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENTS 1 AND 2 AS PER ORDER DATED 24.07.2019 IN IA.6/2019.)

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ADDL.R5 BY ADVS.

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SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2019, ALONG WITH RSA.1225/2004, RSA.1260/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[RSA 1173/2004,RSA.1225/2004,RSA.1260/2004] 4

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶48

PRESENT

¶49

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941

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RSA.No.1225 OF 2004

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AGAINST THE JUDGMENT AND DECREE DATED 19-12-2003 IN AS 88/1999 of ADDITIONAL DISTRICT COURT,KOTTAYAM

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AGAINST THE JUDGMENT AND DECREE DATED 29-09-1998 IN OS 77/1989 of MUNSIFF COURT, ETTUMANOOR

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APPELLANTS/APPELLANTS/PLAINTIFFS:

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1 KURIAN MATHEW, MANTHOTTATHIL HOUSE, OMALLUR, MANJOOR, KOTTAYAM DIST. (DIED)

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2 MATHEW THRESIAMMA, WIFE OF KURIEN MATHEW, MANTHOTTATHIL, DO. DO. (DIED)

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3 MATHEW KURIEN, SON OF KURIEN MATHEW, MANTHOTTATHIL, DO. REPRESENTED BY HIS POWER, OF ATTORNEY HOLDER KURIEN MATHEW, FIRST APPELLANT.

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ADDITIONAL APPELLANT NO.4

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4 JOSEPH MATHEW, S/O.LATE KURIAN MATHEW, MANTHOTTATHIL HOUSE, OMALLOOR KARA, KOTTAYAM DISTRICT.

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(THE LEGAL HEIR OF DECEASED FIRST AND SECOND APPELLANT IS IMPLEADED AS ADDITIONAL APPELLANT NO.4 AS PER ORDER DATED 24.07.2019 IN IA.2/2019.)

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BY ADVS.

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SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN

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[RSA 1173/2004,RSA.1225/2004,RSA.1260/2004] 5

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 MARIAM, WIFE OF VARKEY, VELUTHEDATHU PARAMBIL HOUSE, OMALLUR, MANJOOR P.O., KOTTAYAM DIST.

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2 MATHAI, SON OF MARIAM, DO.

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3 MANI, SON OF MARIAN, DO.

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4 MOLLY D/O OF MARIAM OF DO. DO.

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5 JOSEPH S/O OF MARIAM OF DO. DO.

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*6 GRACY D/O OF MARIAM OF DO.

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*7 XAVIER SON OF MARIAM OF DO.

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*8 ELSA ALIAS ALEYAMMA, D/O OF MARIAM, DO.

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*R6,R7,R8 REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DT.25/01/2006 IN I.A.203/2006

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R1 TO R5 BY ADV. SRI.P.C.HARIDAS

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2019, ALONG WITH RSA.1173/2004, RSA.1260/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[RSA 1173/2004,RSA.1225/2004,RSA.1260/2004] 6

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JUDGMENT

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A suit in O.S.No.77/1989 decreed in part and

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the connected suit in O.S.No.72/1985 was decreed by both the courts below, against which these three appeals were preferred.

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The question came up for consideration is:

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When the parties are claiming title under a same document of partition, a parental document, is it permissible to locate the property of parties to the suit without locating the large extent which would constitute the respective portion of properties claimed by the parties?

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The subject matter of the suit forms part

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of large extent of 3.63 acres of land. It was

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partitioned by dividing the same into three equal shares having an extent of 1.21 acres each. Middle portion was allotted to the predecessor in interest of the plaintiffs. Northern and western portions were allotted to the predecessor in interest of the

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[RSA 1173/2004,RSA.1225/2004,RSA.1260/2004] 7

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defendants. Both are claiming under Ext.A5

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partition deed. The dispute is with respect to the

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dividing boundary and an encroachment over a portion of property.

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Ext.C5 and C6 plans were prepared by the

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survey commissioner. The direction issued by the

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First Appellate Court to locate the entire property

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comprised in the same survey number was not

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complied with by the commissioner and surveyor who were deputed for preparation of Ext.C5 and C6

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plans. As per description given under Ext.A5

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partition, the large extent of 3.63 Acres would constitute the eastern part of large extent excluding western 25 cents. The western 25 cents

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named in the document as 'Kulangara

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Thattupurayidom'. The said property was not located by the commissioner. The large extent available in

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that survey number also not located. There is no

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proper identification of boundaries of the

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properties belonging to the plaintiffs and the defendants. The question of encroachment and claim

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[RSA 1173/2004,RSA.1225/2004,RSA.1260/2004] 8

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of adverse possession can only be adjudicated only

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after locating and fixing the separating boundary for which the property has to be located as per the description given in the parental document- Ext.A5 based on the survey records. That has not been done by the commissioner in Exts.C5 and C6 plans. The litigation started in the year 1985 and as such the Lower Court shall take emergent steps to issue a fresh survey commission. It shall be duty of the Trial Court to get it prepared within four weeks and to dispose of the suits within six weeks from the date of appearance of the parties.

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The decree and judgment of both the courts

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below hence set aside by allowing the appeals in part. The matter is remanded back to the Trial Court for fresh disposal. The parties shall appear before the Trial Court on 22/08/2019. No costs.

Sd/-

P.SOMARAJAN

JUDGE

msp

Mariam, v. Kurian Mathew (Died)

Case brief

What is this about?

What did the court decide?

Mariam, v. Kurian Mathew (Died)

Case brief

What is this about?

What did the court decide?

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