Allowed

Ramakrishnan v. Alli

Kerala HC22 Aug 2019RSA/1260/2011

Case brief

AI extract

What is this about?

This is a regular second appeal against injunction decreed for trespass on contiguous properties. The High Court held that without separating boundaries, a permanent injunction for trespass is unsustainable. The appeal was partly allowed, setting aside the lower decrees and remanding the matter for a survey Commission to fix boundaries.

What did the court decide?

Decree and judgment of the Trial Court and First Appellate Court set aside; matter remanded to Trial Court for new disposal and survey Commission.

Ramakrishnan Vs Alli — Specific Performance | 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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THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941

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RSA.No.1260 OF 2011

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AGAINST THE JUDGMENT AND DECREE DATED 18-12-2010 IN AS 205/2007 OF II ADDITIONAL SUB COURT,THRISSUR

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AGAINST THE JUDGMENT AND DECREE DATED 22-11-2005 IN OS 1/2004 OF PRINCIPAL MUNSIFF COURT, THRISSUR

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APPELLANT/APPELLANT/1ST DEFENDANT:

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RAMAKRISHNAN, S/O EDATHARA VELAYUDHAN, MULAYAM VILLAGE,THRISSUR TALUK & DISTRICT.

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BY ADVS. SRI.N.SUBRAMANIAM SRI.P.T.GIRIJAN SRI.M.S.NARAYANAN

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RESPONDENTS/RESPONDENTS 1,2 AND 4/DEFENDANTS 3:

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1 ALLI, D/O EDATHARA VELAYUDHAN, W/O.THANDAPARAMBIL SADANANDAN,VETTILAPARA, DESOM,MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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2 LEELA, D/O.EDATHARA VELAYUDHAN, W/O.KANDARUVALAPPIL RADHAKRISHNAN, PONGANAMKAD DESOM,KURIACHIRA VILLAGE, THRISSUR TALUK AND DISTRICT.

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3 VISWAMBARAN, S/O.EDATHARA VELAYUDHAN, MULAYAM VILLAGE AND DESOM PO, AYYAPPANKAVU, 680 751, THRISSUR TALUK AND DISTRICT.

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R1 & R2 BY ADV. SRI.K.PAUL KURIAKOSE

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.1260 OF 2011 2

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JUDGMENT

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A suit for injunction simplicitor against

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trespass decreed by both the courts below. The counter claim raised by the defendants for removal of obstruction therein was also concurrently dismissed by both the courts below, against which this appeal.

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Admittedly, the property of plaintiff and the defendants lying as a contiguous plot within the same boundaries. There is no separating boundary structures to the property of plaintiff from that of the defendants. But the Commissioner who had visited the property recognized a water chal as the separating boundary along with some row of trees, which was accepted by both the Trial Court and the First Appellate Court.

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In the document of title nothing mentioned

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with respect to the existence of a water chal or row of trees. Even in the plaint there is no pleading to that effect. I am at a loss to understand from where

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the Commissioner who visited the property had borrowed the said information finding that the water

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RSA.No.1260 OF 2011 3

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chal and the row of trees would constitute the

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boundaries separating the property of plaintiff from that of the defendants. A mischief seen committed by the Commissioner without any authority.

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Admittedly both the properties are lying

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contiguously without any separating boundaries. As such a suit for permanent prohibitory injunction against trespass would not stand. The decree granted

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by the Trial and the First Appellate Court overlooking the settled position cannot be sustained. Since the matter pertaining to the boundary separating the property of the plaintiff from that of the defendants, issuance of a survey Commission

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cannot be avoided for the purpose of fixing the boundary. But, in a suit for permanent prohibitory injunction against trespass, no survey Commission can be issued unless there is a substantial prayer for fixation of boundary, for which the learned counsel

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for the appellant pressed for a remand of the matter. I am inclined to accept the same since the litigation was started in the year 2004 and fought upto this

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court and it is not proper to end the litigation abruptly without redressing the grievance. The

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RSA.No.1260 OF 2011 4

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decree and judgment of the Trial Court and the First Appellate Court are hereby set aside. The matter is remanded back to the Trial Court for fresh disposal in accordance with the law in force. The parties may be permitted to amend their pleading in the plaint, so as to incorporate substantial prayers and to adduce additional evidence, if any. A survey Commission may also be issued at the instance of the parties and shall dispose of the suit within a time schedule of six months from the date of appearance of the parties. The parties shall appear before the Trial Court on 24/09/2019. Send the records forthwith.

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The appeal is allowed in part. No costs.

Sd/-

P.SOMARAJAN

JUDGE

msp

//TRUE COPY//

P.A. TO JUDGE

Ramakrishnan v. Alli

Case brief

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Ramakrishnan v. Alli

Case brief

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