Partly allowed

Raman v. Damayanthi and Others

Kerala HC5 Jul 2019RSA/313/2011

Case brief

AI extract

What is this about?

The court set aside decrees allowing recovery of possession without fixing boundaries in an encroachment suit. The appeal was partly allowed, remanding the matter to the trial court for fresh disposal after affording plaintiffs an opportunity to amend the plaint.

What did the court decide?

Decree and judgment set aside; matter remanded to trial court for fresh disposal within three months after permission to amend plaint for prayer for fixation of boundary.

Raman Vs Damayanthi and Others — Specific Performance | 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 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941

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RSA.No.313 of 2011

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AGAINST THE DECREE & JUDGMENT DATED 15-10-2010 IN AS 30/2004 OF SUB COURT, OTTAPPALAM

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AGAINST THE DECREE & JUDGMENT DATED 24-01-2004 IN OS 40/1998 of MUNSIFF MAGISTRATE COURT,PATTAMBI

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APPELLANT IN RSA-APPELLANT IN A.S.-DEFENDANT IN SUIT:

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RAMAN, S/O.KUTTIKKATTIL NEDUMPURATH DECEASED KUNHIPPARAN,MALA,AMSOM AND DESOM,OTTAPALAM TALUK.

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BY ADVS. SMT.GEETHA P.MENON SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.R.SURAJ KUMAR

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RESPONDENTS IN RSA – RESPONDENTS IN A.S.-PLAINTIFFS 2 TO 6 IN SUIT:

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1 DAMAYANTHI, W/O.DECEASED VELAYUDHAN, RESIDING AT MALA POST, AMSOM AND DESOM,OTTAPALAM TALUK, PALAKKAD - 679534.

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2 SREEJA,D/O. DO. IN DO. DO.

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3 JAYASREE,D/O. DO. IN DO. DO. DO.

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4 JAYARAJAN,S/O. DO. IN DO. DO. DO.

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5 RAMACHANDRAN, S/O.DO.,KUTTIKATTIL NEDUMPURATH,MALA,AMSOM AND DESOM,OTTAPALAM TALUK.

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BY ADVS. SRI.SUMODH MADHAVAN NAIR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.313 of 2011 2

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JUDGMENT

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The defendant came up with this appeal

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aggrieved by the decree and judgment of both the trial court ad the first appellate court. The

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dispute is pertaining to a stretch of land comprised in survey No.257/3, alleged to have encroached upon by the defendant out of property owned by the plaintiffs and hence a suit for recovery of possession. Both the trial court and the first appellate court decreed the suit allowing recovery of encroached portion by annexing Ext.C3 plan.

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The question came up for consideration: Whether it is permissible to grant a recovery of possession of an encroached portion without fixing

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the separating boundary of the property of plaintiffs from that of the defendant ?

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RSA.No.313 of 2011 3

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A survey commissioner went to the property, who prepared Ext.C3 plan. The property of plaintiffs comprised in survey No.255/7 and 257/3. The defendant's property form part of the property comprised in survey No.255/7. They do not have any property in survey No.257/3. A barbed wire fencing constructed around the property of defendant, also located by the commissioner in Ext.C3 plan. A portion of property comprised in survey No.257/3 was encroached upon by constructing a barbed wire fencing. The survey line is clearly drawn through the encroached portion. The encroached portion and the registered holding of defendant separately shown as by giving blue shade. The encroached portion separately located as B,C,Y and V plots lying in somewhat triangle shape. But in the suit there is no prayer for fixation of boundary or adjudicating the exact boundary. When there is a dispute pertaining to the boundary, it should be adjudicated by fixing the boundary, without which

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RSA.No.313 of 2011 4

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there cannot be a decree for recovery of possession. As such, the decree and judgment of both the trial court and the first appellate court are liable to be set aside. The matter is remanded back to the trial court for fresh disposal in accordance with the law after affording an opportunity to the plaintiffs to amend their plaint by incorporating a prayer for fixation of boundary or such other relief and to dispose of the suit afresh within a period of three months from the date of appearance of the parties. The parties shall appear before the trial court on 19.7.2019. The parties may be permitted to adduce additional evidence if they desire so.

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Appeal is allowed in part. No costs of second appeal.

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Sd/-

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P.SOMARAJAN, JUDGE

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Raman v. Damayanthi and Others

Case brief

What is this about?

What did the court decide?

Raman v. Damayanthi and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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