This is a Second Appeal by plaintiffs challenging a decree fixing boundaries. The appellate court upheld the First Appellate Court's decision excluding survey No.483/1, rule that plaintiffs do not have property there, and dismissed the appeal without costs.
The Second Appeal is dismissed. No 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 MR. JUSTICE P.SOMARAJAN
MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941
RSA.No.1335 of 2004
AGAINST THE JUDGMENT AND DECREE DATED 30-03-2004 IN AS 67/2000 of SUB COURT, THIRUVALLA
AGAINST THE JUDGMENT AND DECREE DATED 31-01-2000 IN OS 606/1986 of MUNSIFF COURT, THIRUVALLA
APPELLANTS/RESPONDENTS NO.1 & 2/PLAINTIFFS:
1 MATHAI MATHAI, AGED 66 YEARS, VILANGU PARACKALAYA THOMMIKKATTIL HOUSE, ANIKKADU MURI, ANIKKADU VILLAGE, MALLAPPILLY TALUK, PATHANAMTHITTA DISTRICT. (DIED)
2 T.M.MATHAI, AGED 43 YEARS, S/O.MATHAI MATHAI, VILANGU PARACKALAYA THOMMIKKATTIL HOUSE, ANIKKADU MURI, ANIKKADU VILLAGE, MALLAPPILLY TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS. SRI.PHILIP MATHEW SRI.G.G.MANOJ SRI.JAICE JACOB
RESPONDENTS/APPELLANTS & RESPONDENT NO.3 & 4/DEFENDANTS:
1 MONACHAN ALIAS THOMAS VARGHESE, AGED 37 YEARS, PADINJAREKKOOTTU VEEDU, ANIKKADU MURI, ANIKKADU VILLAGE, MALLAPPILLY TALUK, PATHANAMTHITTA DISTRICT.
*2 ANNAMMA VARGHESE, AGED 78 YEARS, PADINJAREKKOOTTU VEEDU, ANIKKADU MURI, ANIKKADU VILLAGE, MALAPPILLY TALUK, PATHANAMTHITTA DISTRICT. (DIED)
LHR IMPLEADED
RSA.No.1335 of 2004 2
3 BABU, AGED 53 YEARS, PADINJAREKKOOTTU VEEDU, ANIKKADU MURI, ANIKKADU VILLAGE, MALAPPILLY TALUK, PATHANAMTHITTA DISTRICT.
4 DAS, AGED 57 YEARS, TAMIL NADU NATIVE, RESIDING AT PARAMADA, ANIKKADU MURI, ANIKKADU VILLAGE, MALLAPPILLY TALUK, PATHANAMTHITTA DISTRICT.
LEGAL HEIRS OF DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL RESPONDENTS 5 TO 8 AS PER ORDER DATED 15/7/2019, IN I.A.3/19.
PATHANAMTHITTA DISTRICT, PIN-688 589
LEGAL HEIR OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENT NO.9 AS PER ORDER DATED 18/06/2019 IN I.A.6/2019
BY ADV. SRI.M.A.SHAJI
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No.1335 of 2004 3
JUDGMENT
The plaintiffs came up with this appeal,
aggrieved by the decree and judgment of the First Appellate Court (Sub Court, Thiruvalla) in A.S.No.67/2000, in reversing the decree granted by the Trial Court (Munsiff's Court, Thiruvalla) in O.S.No.606/1986.
of rocks and committing waste. The prayer for declaration was incorporated in the suit by way of a subsequent amendment on 18/4/1994. A Survey Commission was let out who in turn after measuring the properties filed report and plan Ext.C2 and C2(a). The Trial Court granted a decree annexing a portion of property comprised in survey No.483/1 as
the property of plaintiffs. But in appeal, it was reversed granting a decree fixing the boundary over the green and violet shaded portions of property shown in Ext.C2(a) plan with plots (TUPQRS and PJAQ plots) excluding the property comprised in survey
RSA.No.1335 of 2004 4
No.483/1. Aggrieved by the said decree and judgment of the First Appellate Court, the plaintiffs came up with this appeal.
Ext.A1 purchase certificate is the property comprised in survey No.484/1 having an extent of one acre. Certain portions were sold and balance extent which comes to 75 cents scheduled in the plaint. A decree was granted by the Trial Court annexing a certain portion of property comprised in survey No.483/1 and fixed the boundary inclusive of abovesaid portion out of survey No.483/1. But, the plaintiffs' property is situated in survey No.484/1. They don't have any property in survey No.483/1, for
which Ext.A1 is self explanatory, wherein the property comprised in survey No.484/1 alone was given under the purchase certificate. Now the claim of plaintiffs is that as per the boundary mentioned
RSA.No.1335 of 2004 5
in the document they are entitled to a portion of property comprised in survey No.483/1. The portion of property located by giving red shade, in Ext.C2 plan is a piece of land lying adjoining with the plaint schedule property and hence both will
constitute the very same boundaries. Further, no case of any wrong mentioning of survey number either set up or raised or pleaded in the plaint. On the otherhand, the property of plaintiffs is comprised in survey No.484/1. They don't have any property in survey No.483/1. The First Appellate Court rightly decreed the suit by fixing the boundary excluding the property in survey No.483/1, hence, deserves no interference by this Court. None of the question raised at the time of admission will come into play.
The appeal deserves only a, dismissal but without cost.
The appeal is dismissed. No costs.
Sd/-
P.SOMARAJAN
JUDGE
msp
2 issues framed by the court
Whether the Second Appeal involving declaration of title and boundary fixation deserves interference.
Whether the plaintiffs are entitled to a portion of property comprised in survey No.483/1 based on boundary documents despite the purchase certificate indicating survey No.484/1.
MATHAI MATHAI & ORS.
MONACHAN ALIAS THOMAS VARGHESE & ORS.
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
