Remanded

M.P.Athikka v. M.P.Bushara and Others

Kerala HC19 Jul 2019RSA/1397/2010

Case brief

AI extract

What is this about?

In a boundary fixation suit, this Court set aside appellate decrees and remanded the matter to the Trial Court. It held that boundary cannot be fixed based solely on possession plans ignoring title deeds and warned of the need to join adjoining landowners.

What did the court decide?

Appellate decrees set aside; matter remanded for fresh disposal by issuing a survey commission based on title deeds.

M.P.Athikka Vs M.P.Bushara and Others — Property and Title | 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.1397 of 2010

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AGAINST THE JUDGMENT AND DECREE DATED 18-03-2010 IN AS 153/2008 of ADDITIONAL SUB COURT, THALASSERY

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AGAINST THE JUDGMENT AND DECREE DATED 31-07-2008 IN OS 562/2002 of ADDITIONAL MUNSIFF COURT, KANNUR

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APPELLANT/APPELLANT/DEFENDANT NO.2:

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M.P.ATHIKKA, W/O.IBRAHIM,PUTHIYAPURAYIL MOOSAN KUNIYIL, KANDAKKAI, KANNUR DISTRICT.

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BY ADV. SRI.KALEESWARAM RAJ

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RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANT NO.1:

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1 M.P.BUSHARA, D/O.IBRAHIM, BUSHARA MANZIL, KANDAKKAI, KAYARALAM AMSOM, KANNUR DISTRICT, PIN-670 602.

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2 M.P.SULAIKA, D/O.K.P.MUHAMMED BUSHASRA MANZIL, KANDAKKAI, KAYARALAM AMSOM, KANNUR DISTRICT, PIN670 602.

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3 PATHUMMA K.P., KUNNUMPURATH PUTHIYAPURAYIL, KANDAKKAI, KAYARALAM AMSOM, KANNUR DISTRICT, PIN-670 602.

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BY ADVS.

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SRI.P.U.SHAILAJAN -R3 SRI.V.RAMKUMAR NAMBIAR- R1 & R2

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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.1397 of 2010 2

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JUDGMENT

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The second defendant came up with this appeal,

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aggrieved by the decree and judgment of the Trial Court (Addl.Munsiff's Court, Kannur) in O.S.No.562/2002 and the First Appellate Court (Addl.Sub Court, Thalassery) in A.S.No.153/2008, in a suit for fixation of boundary and injunction.

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The property of plaintiff comes to one acre covered by Ext.A1 gift deed. The prior owner of the property obtained the property under Ext.B12, which forms large extent of 243 cents. Out of that another 40 cents was gifted to the second defendant under Ext.B11 gift of the year 1977. The properties were lying without any boundary and as such the suit for fixation of south eastern and south western boundary.

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Whether the First Appellate Court and the Trial Court justified in granting a decree of fixation of boundary by accepting the plan prepared based merely on possession ignoring the title deed

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RSA.No.1397 of 2010 3

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and the survey records?

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The Commissioner who went to the property

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had prepared a plan based on the possession and not based on the document of title or survey plan. It was also brought to the notice of this Court that this fact was taken into consideration by the First Appellate Court but the First Appellate Court opted to accept the plan overlooking all settled legal

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position. No survey plan was prepared in

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accordance with the description given in the document of title, Ext.A1 and B11 and Ext.B12, without which there cannot be a fixation of boundary.

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It is also brought to the notice of this

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Court that one of the adjoining property owner

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Moideen was not made as a party to the suit for the purpose of fixation of boundary with that of his property. The question of non-jointer was answered

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negatively by both the courts below. If there is

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an adjoining property with Moideen, which is under dispute, necessarily he should be made as a party to the suit.

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RSA.No.1397 of 2010 4

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The decree granted by both the courts below hence liable to be set aside. The matter is remanded back to the Trial Court for fresh disposal by issuing a survey Commission, so as to locate the property of plaintiff based on the document of title in accordance with the survey plan and survey records. The parties shall appear before the Trial Court on 07/08/2019. The Trial Court shall dispose of the matter within a time schedule of four months from the date of appearance of parties. No order as to cost of appeal.

Sd/-

P.SOMARAJAN

JUDGE

//TRUE COPY//

P.A TO JUDGE

msp

M.P.Athikka v. M.P.Bushara and Others

Case brief

What is this about?

What did the court decide?

M.P.Athikka v. M.P.Bushara and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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