Dismissed

Rajamma v. Purushothaman

Kerala HC2 Jul 2019RSA/173/2009

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a second appeal against a decree fixing boundaries and declaring title. The Court held that the Commissioner's plan correctly located the property based on survey plans and that lack of separate defendant scheduling in the plaint did not bar the suit. The appeal fails on facts.

What did the court decide?

The second appeal is dismissed. No costs. All pending interlocutory applications are closed.

Rajamma Vs Purushothaman — 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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TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941

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RSA.No.173 of 2009

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AGAINST THE JUDGMENT IN AS 273/2004 of DISTRICT COURT & SESSIONS COURT,TRIVANDRUM DATED 15-09-2008

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AGAINST THE JUDGMENT IN OS 19/1992 of PRINCIPAL SUB COURT,ATTINGAL DATED 21-08-2004

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APPELLANTS/APPELLANTS 1-4&ADDITIONAL APPELLANTS/ DEFENDANS 1-4:

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1 RAJAMMA, W/O.BHASKARAN, RATHNAVILASAM, ARAMTHANAM, PULIMATH.

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2 RATNAKUMARI, D/O.RAJAMMA RATHNAVILASAM, ARAMTHANAM, PULIMATH.

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3 JAYAPRAKASH, S/O.BHASKARAN RATHNAVILASAM, ARAMTHANAM, PULIMATH.

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4 BHADRAN, S/O.BHASKARAN RATHNAVILASAM, ARAMTHANAM, PULIMATH.

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5 PRASOBHA, AGED 64 YEARS, W/O.SOMADASAN RESIDING AT KADAYIL VEEDU, ARAMTHANAM, VAMANAPURAM P.O., THIRUVANANTHAPURAM.

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6 LIJU DAS.S., AGED 37 YEARS S/O.SOMADASAN, RESIDING AT KADAYIL VEEDU, ARAMTHANAM, VAMANAPURAM P.O., THIRUVANANTHAPURAM.

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R.S.A.No.173 of 2009

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:-2-:

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7 LIJI DAS, AGED 35 YEARS S/O.SOMADASAN, RESIDING AT KADAYIL VEEDU, ARAMTHANAM, VAMANAPURAM P.O., THIRUVANANTHAPURAM.

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BY ADV. SRI.G.S.REGHUNATH

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RESPONDENTS/R1,R4,R5,ADDL.R6&ADDL.R7/PLAINTIFF & DEFENDANTS 8&9:

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1 PURUSHOTHAMAN S/O KUNJAN, SREE NIVAS, ARAMTHANAM, PULIMATH VILLAGE.

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2 BHANUMATHY, D/O.NARAYANAN(DELETED) THEKKUMKARA VEEDU, KAMUKINKUZHY, PULIMATH.

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3 SUMANGALI MOHANAN, D/O.BHANUMATHY (DELETED) THEKKUMKARA VEEDU, KAMUKINKUZHY, PULIMATH.

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4 LEENA, D/O.VASANTHAKUMARI(DELETED) THEKKUMKARA VEEDU, KAMUKINKUZHY, PULIMATH.

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5 LENIN, S/O.VASANTHAKUMARI (DELETED) THEKKUMKARA VEEDU, KAMUKINKUZHY, PULIMATH.

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THE RESPONDENTS 2 TO 5 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 28/02/2019 IN IA 1/2019

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BY ADVS. SRI.HARISH GOPINATH SRI.M.AJAY (IRUMPANAM) SRI.M.S.KALESH SRI.R.S.KALKURA SRI.V.VINAY MENON

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.No.173 of 2009

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:-3-:

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J U D G M E N T

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The appeal is against the concurrent finding

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and decree and judgment of both the Trial Court and

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the First Appellate Court by the defendant Nos.1 to 4 and 7.

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The suit is one for declaration of title,

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possession and for injunction, besides recovery of encroached portion, if any found and for fixation of boundary. The plaintiff is the owner of 1 Acre of property scheduled in the plaint having an

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extent of 49 cents in Survey No.1805/1 and 51 cents

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in Survey No.1805/32. Ext.A1 is the parental

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document of the year 1111 M.E. The said property

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obtained from one Kunjan. Ext.A2 is the settlement deed in favour of the plaintiff. The defendants are

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the owners of western and southern property. The 7^th defendant has got some property on the northern side, along with 5^th , 6^th and 8^th defendants. The

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R.S.A.No.173 of 2009

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:-4-:

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Commissioner who visited the property had prepared

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Ext.C3(a) plan, which has accepted by both the Trial Court and the First Appellate Court and a decree was passed fixing the boundary of property

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of the plaintiff in accordance with the plot located by the Commissioner in Ext.C3(a) plan. Aggrieved by the said decree and judgment, the

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Second Appeal was preferred by the defendants 1 to 4 and 7.

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The Commissioner who visited the property

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prepared Ext.C3(a) plan, by which the property of the plaintiff is located out of Survey Nos.1805/1

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and 1805/32, and reported that none of the

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defendants have any property either in Sub-division

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No.1 or in Sub-division No.32. Ext.C3(a) was

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prepared based on the Sub-division plan which is well evident from the fact that the Commissioner

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has located 67 cents out of Sub-division No.32,

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R.S.A.No.173 of 2009

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:-5-:

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though as per document, the extent of the property comes to 51 cents. 12 cents alone is located out of Sub-division No.1 though as per the document, the plaintiff is entitled to 49 cents out of that Subdivision. This would clearly show that Ext.C3(a) plan was prepared based on the Survey and Subdivision plan, i.e., based on the Survey plan

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having Sub-division. As discussed earlier, none of the defendants have any property in Sub-division No.1 or in Sub-division No.32. The extent of the property available under Sub-division No.1 and Subdivision No.32 alone was located as that of the plaintiff in Ext.C3(a) plan, based on the Survey and Sub-division plan and the total extent, comes to only 79 cents instead of One acre.

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The main argument advanced by the learned

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counsel for the defendants/appellants is that their

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property was not separately scheduled in the plaint

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R.S.A.No.173 of 2009

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:-6-:

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and that it was not properly located. It is not at all necessary that the property of the defendants should be scheduled in the plaint, for the purpose of fixation of boundary, the only requirement is that the property of the defendants is lying without any boundary. The suit is one for fixation of boundary of property of the plaintiff. The Commissioner who prepared Ext.C3(a) plan had

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located some portion of the property found to be in possession of the defendants based on the existence

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of 'granite boundary wall' (kalladukku). The encroached portion would squarely come within the Sub-division Nos.1 and 32 of Survey No.1805. The

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question of adverse possession raised was repelled by both the Courts below by rendering a concurrent

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finding on facts. No case of perversity or

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illegality was brought to the notice of this Court. No objection was filed to Ext.C3(a) plan and

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R.S.A.No.173 of 2009

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:-7-:

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nobody entered into the box. None of the questions raised at the time of admission would come into play. Hence the appeal fails.

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The appeal is dismissed. No costs.

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All pending interlocutory applications are

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closed.

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Sd/- P.SOMARAJAN JUDGE

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ami/

Rajamma v. Purushothaman

Case brief

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Rajamma v. Purushothaman

Case brief

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