Partly allowed

Karthyayani v. Thomas(Died)

Kerala HC19 Jul 2019RSA/448/2009

Case brief

AI extract

What is this about?

The High Court set aside the decree of both the Trial Court and First Appellate Court in a suit for injunction and fixation of boundary. The Court held that the inability to locate the total extent of property did not justify dismissal. The matter was remanded to the Trial Court to depute a surveyor and locate properties after plaintiffs furnish evidence of alienations. Appeal allowed partly.

What did the court decide?

The decree and judgment of the Trial Court and First Appellate Court were set aside. The matter was remanded to the Trial Court to dispose of the suit afresh by issuing a survey Commission.

Karthyayani Vs Thomas(Died) — 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.448 of 2009

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AGAINST THE JUDGMENT AND DECREE DATED 31-08-2006 IN AS 213/2004 of VI ADDITIONAL DISTRICT COURT, ERNAKULAM

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AGAINST THE JUDGMENT AND DECREE DATED 30-03-2004 IN OS 1924/1999 of PRINCIPAL MUNSIFF COURT, ERNAKULAM

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APPELLANTS/RESPONDENTS IN APPEAL/DEFENDANTS IN SUIT:

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1 KARTHYAYANI, D/O LATE KANDA, PUTHUKKATTU VELIYIL, SOUTH PARUR MURI,

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MANAKUNNAM VILLAGE, KANAYANNUR TALUK (DIED).

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2 JANARDHANAN, S/O.KARTHYAYANI,

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AGED 64 YEARS, PUTHUKKATTU VELIYIL, SOUTH PARUR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK.

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3 JAYARAMAN, S/O.KARTHYAYANI, AGED 59 YEARS, PUTHUKKATTU VELIYIL, SOUTH PARUR MURI, MANAKUNNAM VILLAGE, KANAYANNUER TALUK.

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4 PANKAJAKSHAN, S/O.KARTHYAYANI, AGED 55 YEARS, PUTHUKKATTU VELIYIL, SOUTH PARUR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK.

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5 MURALEEDHARAN, S/O.KATHYAYANI AGED 51 YEARS, PUTHUKKATTU VELIYIL, SOUTH PARUR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK.

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6 JEEVARAJAN, S/O.KARTHYAYANI, AGED 48 YEARS, PUTHUKKATTU VELIYIL, SOUTH PARUR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK.

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ADDITIONAL APPELLANTS

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ADDL. DEEPA SANTHOSH, AGED 39 YEARS, D/O LATE JANARTHANAN A7 P.N, W/O SANTHOSH, CHARALPARAMBIL HOUSE,VAIKOM TALUK, KATTIKUNNU PO

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ADDL. SHABNA RAJEEV, AGED 37 YEARS, D/O LATE JANARTHANAN A8 P.N, W/O RAJEEV, THACHORA HOUSE, KARUMALLOOR P.O, THATTAMPADY, ALUVA - 683 511

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ADDL. SHEGNA JAYACHANDRAN, AGED 35 YEARS, D/O LATE A9 JANARDHANAN P.N, W/O JAYACHANDRAN, KUNNAPADATHU HOUSE, MATHUOOR, EROOR P.O, THRIPUNITHURA - 682 306

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LEGAL HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED

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RSA.No.448 of 2009 2

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AS ADDL.APPELLANTS 7 TO 9 AS PER ORDER DTD.20/06/19 IN I.A.1207/2012

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BY ADV. SRI.JOHNSON ABRAHAM SRI.P.GOPINATHAN SRI.NELSON ABRAHAM

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RESPONDENT/APPELLANT/PLAINTIFF:

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1 THOMAS, S/O.LATE OUSEPH, AGED 70 YEARS, PUNNAPUZHA HOUSE, SOUTH PARUR, KANAYANNUR TALUK.(DIED)

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LEGAL HEIRS IMPLEADED

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ADDL. ANIL BOSE, AGED ABOUT 53 YEARS, R2. S/O.LATE THOMAS, PUNNAPUZHA HOUSE, SOUTH PARUR, KANAYANNUR TALUK.

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ADDL. CHACKO, AGED ABOUT 50 YEARS, R3. S/O.LATE THOMAS, PUNNAPUZHA HOUSE, SOUTH PARUR, KANAYANNUR TALUK.

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ADDL. JOBY, AGED ABOUT 48 YEARS, R4. S/O.LATE THOMAS, PUNNAPUZHA HOUSE, SOUTH PARUR, KANAYANNUR TALUK.

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ADDL. JOMOL, AGED ABOUT 46 YEARS, R5. D/O.LATE THOMAS, PUNNAPUZHA HOUSE,, SOUTH PARUR, KANAYANNUR TALUK.

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ADDL. NEEMOLE, AGED ABOUT 44 YEARS, R6. D/O.LATE THOMAS, PUNNAPUZHA HOUSE,, SOUTH PARUR, KANAYANNUR TALUK.

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ADDL. TESSY, AGED ABOUT 42 YEARS, D/O.LATE THOMAS, R7. PUNNAPUZHA HOUSE, SOUTH PARUR, KANAYANNUR TALUK. ADDL. LOLAMMA, AGED ABOUT 40 YEARS, R8. D/O.LATE THOMAS, PUNNAPUZHA HOUSE, SOUTH PARUR, KANAYANNUR TALUK.

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ADDL. DAYANA, AGED ABOUT 38 YEARS, D/O.LATE THOMAS, R9. PUNNAPUZHA HOUSE,, SOUTH PARUR, KANAYANNUR TALUK.

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(LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 2 TO 9 AS PER ORDER DATED 06.06.2019 IN IA.3/2019)

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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.448 of 2009 3

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JUDGMENT

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A suit for injunction subsequently amended as

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fixation of boundary was dismissed by the Trial Court (Principal Munsiff's Court, Ernakulam) in

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O.S.NO.1924/1999, but in appeal it was allowed,

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fixing the boundary of plaint schedule property.

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consideration are:

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(i) Whether it is permissible to locate the balance extent of property claimed by the

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plaintiffs, without showing extent of property sold in various occasions out of large extent?

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(ii) Whether the first appellant justified in

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decreeing the suit based on a plan prepared not in accordance with the re-survey plan and old survey plan. A plan prepared based on possession would suffice?

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dismissing the suit when there is failure to locate the property by the survey Commission and plan

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RSA.No.448 of 2009 4

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prepared was found to be not acceptable. What

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should be the recourse to be adopted by the Trial Court in that situation?

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The plaint schedule comes to 13 cents. It

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is a portion of large extent of 46 cents. There

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was some earlier understanding by which the grandfather of defendant executed Ext.A2 document releasing his entire right over 46 cents of property, being the one half of 92 cents. The

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other one half 46 cents given to the predecessor in interest of the defendant under Ext.A3 sale deed.

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The plaintiffs are claiming title by virtue of

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Ext.A2 document. The plaint schedule consists of 13 cents. What is obtained by the plaintiffs under Ext.A2 comes to 46 cents. That 46 cents is not

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scheduled in the plaint. Though, the plaintiffs have made certain alienation over the property with respect to several portions of large extent of 46

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cents, it is not made mention in the plaint

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regarding the extent of property which were sold and alienated and no evidence of alienation either

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by certified copy or otherwise produced to show the

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RSA.No.448 of 2009 5

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extent of property already sold. The Commissioner who visited the property has not located the entire

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extent of 92 cents, for the purpose of locating the

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large extent of 46 cents given under Ext.A2

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document. The properties which were sold out of

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Ext.A2 document was also not located. Only 13 cents of property owned by the plaintiff is seen located without referring the portions of property

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already sold. The property of defendant also not located, out of the large extent of 92 cents. That itself would show that the plan prepared by the Commissioner accepted by the First Appellate Court cannot be sustained. The First Appellate Court went wrong in appreciating Ext.C1(a) and (b) plan in relation to the document of title and the survey

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record. The property, if any, owned by the plaintiffs have to be located only after locating the large extent of 92 cents and the 46 cents

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covered by Ext.A2. The property sold to various persons shall be located out of the 46 cents owned by the plaintiffs, then only, the balance extent available with the plaintiffs can be located.

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RSA.No.448 of 2009 6

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The Village Officer who prepared the survey

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plan had admitted that he had not adverted to

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either the old survey plan or re-survey plan by locating the plaint schedule property. The First Appellate Court overlooked all these facts and

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arrived at a wrong conclusion, liable to be set aside.

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It is not permissible to dismiss the suit

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simply on the reason that there is failure on the

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part of surveyor to locate the property held by the plaintiff. A opportunity should be given to locate

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the property by deputing another surveyor. That

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has not been followed by the Trial Court and as such the decree of the Trial Court also liable to

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be set aside. The decree and judgment of both the

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Trial Court and the First Appellate Court are hereby set aside. The matter is remanded back to the Trial Court for disposal in accordance with the

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law by issuing a survey Commission to locate the properties. The plaintiffs shall furnish evidence of document of alienation before the Trial Court so

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as to ascertain the actual extent, if any, held by

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RSA.No.448 of 2009 7

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the plaintiff after alienation and it shall be located in accordance with the extent of property available out of large extent of 92 cents. This has to be located at first.

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The appeal allowed in part accordingly. The parties shall appear before the Trial Court on 29/07/2019. No order as to cost of appeal. The Trial Court shall expedite the disposal of the appeal within a time schedule of three months from the date of appearance of the parties.

Sd/-

P.SOMARAJAN

JUDGE

//TRUE COPY//

P.A. TO JUDGE

msp

Karthyayani v. Thomas(Died)

Case brief

What is this about?

What did the court decide?

Karthyayani v. Thomas(Died)

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

Coram

Case details

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