Partly allowed

Arunkumar v. Valiaparambil Janaky

Kerala HC21 May 2019RSA/272/2004

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, holding that the decree of permanent prohibitory injunction is unenforceable due to defects in the identification and boundary description of the plaint schedule property. The judgments below were set aside, and the matter remanded to the trial court for fresh disposal.

What did the court decide?

The decree and judgment of courts below set aside; matter remanded to trial court for fresh disposal within five months; parties to appear on 30.5.2019.

Arunkumar Vs Valiaparambil Janaky — 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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TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941

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RSA.No. 272 of 2004

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AGAINST THE JUDGMENT IN AS 284/1999 OF III ADDITIONAL DISTRICT COURT (ADHOC)(FAST TRACK COURT NO.1), THRISSUR DATED 10-07-2003

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AGAINST THE JUDGMENT IN OS 290/1994 OF I ADDITIONAL SUB COURT, THRISSUR DATED 27-101998

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APPELLANT/APPELLANT/1ST DEFENDANT:

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ARUNKUMAR, AGED 44, S/O. VALIPARAMBIL BALA GANGADHARAN, KAZHIMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK.

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BY ADVS. SMT.V.P.SEEMANDINI (SR.) SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN RESPONDENTS/RESPONDENTS/2ND & 3RD DEFENDANTS: 1 VALIAPARAMBIL JANAKEY, AGED 71,(DIED) W/O. VALIPARAMBIL MADHAVAN & D/O. KONDICHIRA GOPALAN, KAZHIMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK. LHRs IMPLEADED AS ADDL R4 TO R9 2 AJAIKUMAR, AGED 42, ABKARI BUSINESS DO DO. 3 SUJATHA, AGED 67, W/O. LATE BALAGANGADHARAN AND M/O. DEFENDANTS 1 & 2, DO DO. ADDL. RESPONDENTS 4 V.M. JAI SINGH, S/O.MADHAVAN, VALIPARAMBIL HOUSE, KAZHIMBRAM POST, EDAMUTTAM, TRISSUR-680568 5 V.M.RENJITH SINGH, S/O.MADHAVAN, VALIPARAMBIL HOUSE, KAZHIMBRAM POST, EDAMUTTAM, TRISSUR-680568 6 SMT.JAYA SUDHEER SINGH, W/O.V.M LATE SUDHEER SINGH, VALIPARAMBIL HOUSE, KAZHIMBRAM POST, EDAMUTTAM, TRISSUR-680568 7 CHIKKU,S/O.LATE SUDHEER SINGH, VALIPARAMBIL HOUSE, KAZHIMBRAM POST, EDAMUTTAM, TRISSUR-680568 8 BIKKU, S/O.LATE SUDHEER SINGH, VALIPARAMBIL HOUSE, KAZHIMBRAM POST, EDAMUTTAM, TRISSUR-680568 BIKKU, 9 KUSUMA KUMARI, W/O.LATE M.U.VIJAYAN, MARAMKOTTI KADAVIL HOUSE, CHERAI P.O.,NORTH PARAVUR, ERNAKULAM – 683514 ADDITIONAL 8TH RESPONDENT IS REMOVED FROM THE PARTY ARRAY OF I.A. 1025/2015 AT THE RISK OF THE APPELLANT AS PER THE ORDER DATED 27.3.2019 IN I.A.NO.272/04 LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 TO 9 AS PER THE ORDER DATED 21.5.2019 IN I.A 1025/2015. BY ADVS. SMT.ANNIE JACOB SMT.MEENA.A. SRI.K.C.KIRAN SRI.M.DEVESH SRI.T.KRISHNANUNNI (SR.) SRI.VINOD RAVINDRANATH

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 272 of 2004 2

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JUDGMENT

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This Second Appeal came up from the hands of

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the first defendant as against the concurrent finding of the decree and judgment rendered by both the courts below in O.S.No.290 of 2004 of First Addl. Sub Court, Thrissur and in A.S.No.284 of 1999

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of Third Addl. District Judge Adhoc (Fast Track

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No.1), Thrissur.

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The following substantial questions of law

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came up for consideration:

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i) Is it proper for both the Courts below to

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enter a finding regarding the possession of the property by the plaintiff ignoring Exts.B1 to B9 ?

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ii) Is it proper for the Court below to grant

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a decree for permanent prohibitory injunction when the defendant has succeeded in establishing his possession over the property ?

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RSA.No. 272 of 2004 3

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grant any relief to the plaintiff in the absence of prayer for recovery of possession on the strength of title ?

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During the course of argument beside the above said substantial question of law, the

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question of identification of property also came up as another substantial question of law involved.

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The plaint schedule property admittedly form part of a large extent of one acre 28 cents of property obtained by the plaintiff under an assignment of mortgage, Ext.A1 of the year 1945 (Panaya Theeradharam. She had sold some portion of property out of the large extent of one acre 28

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cents and the balance comes to 31 cents, the plaint schedule herein.

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The defendant claims possession and right over the property based on Ext.B1 to B9 documents.

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RSA.No. 272 of 2004 4

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B1 is the possession certificate and B2 is the

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basic tax receipts for an extent of 32 cents. Both

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the trial court and the first appellate court

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concurrently found that the plaintiff is in possession of balance extent of property scheduled in the plaint based on Ext.A1 assignment deed of

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mortgage. Based on which a decree of permanent prohibitory injunction was granted by both the courts below.

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Then comes the question whether the decree of injunction granted would operate against the plaint schedule property when the plaint schedule property is not capable of identification by any boundaries or boundary structures. No survey

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commission was deputed and no evidence was adduced

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to show the identifying characters with its boundary of the plaint schedule property, which is admittedly the balance extent of a property out of

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RSA.No. 272 of 2004 5

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a large extent of one acre 28 cents. The large extent of one acre 28 cents not separately scheduled in the property. Further, the location of balance extent is also not specified anywhere in the plaint schedule description. It is true that the document of alienation made by the plaintiff subsequently produced and let in evidence, but that will not cure the basic defect crept in the plaint schedule description. In fact, the decree granting permanent prohibitory injunction is unenforceable due to defect in the identification of plaint schedule property. In the said circumstance, the learned counsel for the respondents pressed for a remand of the matter to the trial court so as to rectify the mistake crept in the plaint schedule description and to locate the plaint schedule property showing its boundaries if any existed and for a disposal of the matter afresh. In the said

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RSA.No. 272 of 2004 6

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circumstance, I am of the view that it is not at all fit and proper to curtail the right to proceed with and agitate the proprietary right over the property and hence, appeal allowed in part. The decree and judgment of both the trial court and the first appellate court are set aside. The matter is remanded back to the trial court for fresh disposal in accordance with the law in force. The trial court shall expedite disposal of the suit within a period of five months from the date of appearance of the parties. The parties shall appear before the trial court on 30.5.2019. No order as to costs of the appeal.

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In the light of the above said judgment it is not at all necessary to consider the application filed for accepting additional evidence under Order 41 Rule 27 CPC and it will be open to the parties to produce additional evidence in the trial court.

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RSA.No. 272 of 2004 7

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The document produced shall be returned to the

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concerned counsel on application.

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Sd/-

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P.SOMARAJAN, JUDGE

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// TRUE COPY //

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PA TO JUDGE

Arunkumar v. Valiaparambil Janaky

Case brief

What is this about?

What did the court decide?

Arunkumar v. Valiaparambil Janaky

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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