Allowed

Anil Mathew v. Suresh Mathew

Kerala HC19 Jul 2019RSA/1392/2004

Case brief

AI extract

What is this about?

This Section 94 appeal challenged the decree and judgment fixing property boundaries in a suit for boundary fixation between family members. The High Court held that the survey plan was erroneous regarding the chronological location of properties alienated to the plaintiff. The appeal was allowed, setting aside the lower court's decree, and the matter was remanded to the Trial Court for a fresh su

What did the court decide?

The appeal is allowed; the decree and judgment of both courts below are set aside; the matter is remanded to the Trial Court to issue a fresh Survey Commission.

Anil Mathew Vs Suresh Mathew — 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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FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941

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RSA.No.1392 of 2004

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AGAINST THE JUDGMENT AND DECREE DATED 24-03-2004 IN AS 283/1998 of ADDITIONAL DISTRICT COURT, FAST TRACK COURT (ADHOC)-II, KOTTAYAM

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AGAINST THE JUDGMENT AND DECREE DATED 31-07-1998 IN OS 227/1996 of MUNSIF COURT, KANJIRAPPALLY

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APPELLANT/4TH RESPONDENT/5TH DEFENDANT:

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ANIL MATHEW, AGED 34 YEARS, S/O.K.J.MATHAI, KUNNAPPALLIL, KARIMBUKAYAM, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT.

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BY ADVS. SRI.C.HARINDRAMOHAN NAIR SRI.LIJI.J.VADAKEDOM

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RESPONDENTS/APPELLANT/RESPONDENT/PLAINTIFF/DEFENDANT:

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1 SURESH MATHES, AGED ABOUT 37 YEARS, S/O.K.J.MATHAI,KUNNAPPALLI, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT.

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2 K.J.MATHAI, AGED ABOUT 75 YEARS, S/O.OUSEPH, KUNNAPPALLIL, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT.

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3 ROY MATHEW, AGED ABOUT 40 YEARS, S/O.K.J.MATHAI, KUNNAPPALLIL, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT.

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RSA.No.1392 of 2004 2

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4 SHIRLY MATHEW, AGED ABOUT 35 YEARS, D/O.K.J.MATHAI, KAKKAPARAYIL, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. 5 SUNIL MATHEW, AGED ABOUT 32 YEARS, S/O.K.J.MATHAI, KUNNAPPILLIL, KARIMBUKAYAM, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT.

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BY ADVS. SRI.BECHU KURIAN THOMAS (SR.)-R2 & R5 SRI.GEORGE A.CHERIAN -R5 SRI.JOHN JOSEPH VETTIKAD -R1 SRI.JOSEPH ABRAHAM (KOTTAYAM) - R1 SRI.LEO LUKOSE -R5 SRI.SABU GEORGE - R1

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.1392 of 2004 3

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JUDGMENT

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The 5^th defendant came up with this appeal

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against the decree and judgment of the First Appellate Court (Addl. District Fast Track Court (Adhoc)-II, Kottayam) in A.S.No.283/1998 in a suit for fixation of boundary. The Trial Court (Munsiff Court, Kanjirappally) in O.S.No.227/1996 decreed the suit by fixing the boundary of plaintiff's property in accordance with the claim of defendants. But in appeal, it was modified by fixing the boundary in accordance with the claim of plaintiff. Aggrieved by the said decree and judgment, the 5^th defendant came up with this appeal.

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The parties are near relatives, brothers, sisters, father and mother. A large extent of 3 acres and 34 cents belonged to the father, the first defendant in the suit. The actual extent

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comes to 3 acres 4 cents and 497 sq.links. This property was given under 4 documents to his

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RSA.No.1392 of 2004 4

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children. The first document executed by him is Ext.A1 dated 19/07/1994, by which 80 cents of property was given to the plaintiff out of the large extent of 3 acres 4 cents and 497 sq.links. Subsequently, on 29/02/1996 he had executed three settlement deeds, Ext.B1 for 1 acre 20 cents. Ext

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A4 in favour of the plaintiff for 45 cents and Ext.B2 for an extent of 59.907 cents. There is no

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dispute pertaining to the title claimed by the respective parties under Ext.A1, A4, B1 and B2.

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The dispute is only with respect to the separating boundary and its location out of the large extent of 3 acres 4 cents 497 sq.links owned and possessed

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by first defendant, father. The survey

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Commissioner who visited the property had located

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the 80 cents of property at first, then the properties covered by 3 subsequent documents, Ext.B1,B2 and A4. The 80 cents of property covered

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by Ext.A1 document was located as plot

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No.A,B,C,D,E,F. It is lying somewhat middle of large extent of 3 acres 4 cents 497 sq.links. The

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Commissioner has then located the 3 portions of

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RSA.No.1392 of 2004 5

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property covered by Ext.B1,B2 and A4. The property

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covered by Ext.A4 comes to 45 cents which extends up to the eastern boundary of large extent. So, it was located as E,F,H,J,K plots lying adjoining to the 80 cents. The remaining eastern boundary of B schedule constitute the 1 acre 20 cents given under

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Ext.B1 document. The said location is under

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challenge. It was submitted that the said location

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is erroneous not in accordance with the tile deed or the survey plan.

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The general rule is that portions of

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properties sold/alienated out of large extent,

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should be located in its chronological order commencing from the first document of alienation

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and whatever the reduction/excess in extent, can be

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adjusted only towards the last document in its chronological order. When the description in the first document or some other document which would

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get chronological preference in its location, found

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to be not capable of ascertainment of its actual location, the surveyor or the commissioner who were deputed to locate the property can seek assistance

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RSA.No.1392 of 2004 6

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from the subsequent documents for the purpose of

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locating the portion of property earlier sold/alienated. But it was not followed at the time of preparation of Ext.C1 plan. In Ext.A1 what is transpired comes to 80 cents out of large extent of 3 acres 4 cents 497 sq.links. But it is not stated in Ext.A1 whether this 80 cents of property would constitute any particular portion of large

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extent of 3 acres 4 cents 497 sq.links. The boundaries mentioned would show that the northern boundary is a thodu. Admittedly, the entire 3 acres 4 cents 497 sq.links lying adjoining to a thodu on its northern boundary. The three other boundaries of 80 cents covered by Ext.A1 stated to be the property of executant, the father. It would show that 80 cents of property in Ext.A1 is lying somewhat middle of large extent of 3 acres 4 cents 497 sq.links held by the executant, the father lying adjoining to the northern thodu. But then also comes another question as to how the location of this property can be ascertained unless there is something to show its actual location. The next

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RSA.No.1392 of 2004 7

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document of alienation are three in numbers, Ext.A4, Ext.B1 and Ext.B2 which were executed on the same day. Ext.A4 is pertaining to 45 cents to the plaintiff and its location is stated as lying on the eastern side of property covered by Ext.A1 (80 cents). Its location further stated as being the eastern part of large extent of 3 acres 4 cents 497 sq.links and its eastern boundary as shown as property of some other person. So for the purpose of locating the property covered by Ext.A1, the property given under Ext.A4 document can be taken into consideration. For that purpose, the property covered by Ext.A4 and its location can be ascertained at first and then to locate the western 80 cents of property lying adjoining to it. But in the present case, in Ext.C1 plan 80 cents of property was wrongly located without any basis and then located the 45 cents of property covered by Ext.A4 extending upto eastern boundary. There is no justification for locating the item No.1 in A schedule property, 80 cents, as ABCDEF plot. The location of A,B,C,D,E & F points are without any

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RSA.No.1392 of 2004 8

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basis and without the assistance of Ext.A1 document

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except the extent covered by that document. In

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fact the 45 cents covered by Ext.A4 was located subsequent to the location of item No.1 property

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and while stretching the 45 cents upto the eastern

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boundary, some adjustment was done so as to

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elongate the same upto eastern boundary by reducing its width and thereby only a certain portion of

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western boundary of that property (item No.2

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property)shares common boundary with the item No.1, 80 cents. It is per se wrong and against Exts.A1

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and A4 documents and also against Exts.B1 and B2

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documents. Inorder to resolve the issue A schedule item No.2 property, 45 cents, has to be located

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first. Then the adjoining 80 cents has to be

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located which would define the location and each and every corner point of the plot, item No.1 property covered by Ext.A1.

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Hence, the plan prepared exhibited as Ext.C1

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cannot be accepted. In the said circumstance, issuance of a fresh Survey Commissioner to locate

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the above said properties as mentioned above cannot

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RSA.No.1392 of 2004 9

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be avoided. For that purpose the matter is remanded back to the Trial Court with a direction to issue a fresh Survey Commission for the purpose of locating property as mentioned above. A Surveyor in service may be deputed for that purpose after consultation with both the parties and the plan shall be prepared within 3 weeks from the date of appearance of the parties. The Trial Court shall dispose of the matter positively within two months from the date of appearance of the parties. The decree and judgment of both the court below set aside.

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The appeal is allowed accordingly. No costs.

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The parties shall appear before the Trial Court on 30/07/2019.

Sd/-

P.SOMARAJAN

JUDGE

msp

//TRUE COPY//

P.A. TO JUDGE

Anil Mathew v. Suresh Mathew

Case brief

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Anil Mathew v. Suresh Mathew

Case brief

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