Partly allowed

Madhavi v. Raghavan Pillai (Deleted)

Kerala HC12 Mar 2019RSA/523/2003

Case brief

AI extract

What is this about?

Appeal by defendant against dismissal of injunction suit. Court held that with a Survey Commission plan locating encroachment, it is fit to allow appellant to amend plaint for recovery and boundary fixation. Appeal allowed; matter remanded.

What did the court decide?

Allowance of appeal to amend plaint incorporating prayers for boundary fixation and recovery of encroached portion; remand to Trial Court.

Madhavi Vs Raghavan Pillai (Deleted) — 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 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940

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RSA.No. 523 of 2003

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AGAINST THE JUDGMENT AND DECREE DATED 31-10-2002 IN AS 79/1996 of SUB COURT, CHERTHALA

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AGAINST THE JUDGMENT AND DECREE DATED 18-03-1996 IN OS 437/1984 of PRINCIPAL MUNSIFF COURT, CHERTHALA

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APPELLANT/S:

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1 MADHAVI, D/O.KOMA, AGED 62 YEARS, RESIDING AT PATHIPPARAMBIL, ARRORMURI, ARROR VILLAGE, CHERTHALLA.(DIED)

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LR'S IMPLEADED AS ADDL.APPELLANTS 2 TO 6

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2 RAJAPPAN, S/O.VELU, AGED 72, PALLIPARAMBIL HOUSE, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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3 KUMARI, D/O.MADHAVI, AGED 50, PALLIPARAMBIL HOUSE, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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4 SUNITHA, D/O.MADHAVI, AGED 44, PALLIPARAMBIL HOUSE, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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5 ANITHA, D/O.MADHAVI, AGED 40, PALLIPARAMBIL HOUSE, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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6 GOPALAKRISHNAN, S/O.RAJAPPANI, AGED 37, PALLIPARAMBIL HOUSE, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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RSA.No. 523 of 2003 2

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(THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 6 AS PER ORDER DATED 13.01.2017 IN IA.46/2017).

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BY ADVS. DR.V.N.SANKARJEE SRI.M.M.VINOD SRI.UDAYA JYOTHII R. SRI.V.N.MADHUSUDANAN SRI.SIDHARTHAN SMT.M.SUSEELA

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RESPONDENT/S:

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1 RAGHAVAN PILLAI S/O.SANKARA PILLAI, LALEKKATHARA, ARROR MURI, ARROR VILLAGE.(DELETED)

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2 KALYANI AMMA, BHAVANI AMMA, KALAKKATHARA, ARRORMURI, ARROR VILLAGE. (DELETED)

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(RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 05.07.2018 IN IA.1648/2018).

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3 SUJATHA, W/O.BHARGAVAN, PALLIPPARAMBIL, ARROR MURI, ARROR VILLAGE.

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BY ADV. SRI.K.T.SHYAMKUMAR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 523 of 2003 3

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JUDGMENT

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Aggrieved by the concurrent finding rendered

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by both the Trial Court (Prl.Munsiff's Court, Cherthala) in O.S.No.437/1984 and by the First Appellate Court (Sub Court, Cherthala), the

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defeated plaintiff came up with this appeal.

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The suit is one for injunction simplicitor.

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There was only two defendants in the suit, first and second defendants. The second defendant is the property owner lying west to the property of plaintiff. The first defendant is the property owner with respect to the property which is lying further west to the property of second defendant. The first defendant has no common boundary with the property of plaintiff. Both the court below dismissed the suit, rejecting the contention raised by the plaintiff/appellant.

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The questions came up for consideration

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are:(i) When a portion of property found to be

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RSA.No. 523 of 2003 4

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encroached by the defendant, whether it is permissible to dismiss the suit without affording an opportunity to amend the plaint, for recovery of encroached portion? (ii) Once Survey Commission was issued to ascertain encroachment over the property of plaintiff at his instance, is it permissible to deny an opportunity to incorporate a relief of recovery in the suit?

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Originally, the plaint schedule property

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was owned by one Chandramathi Amma. She is having 20 cents. From her 5 cents of property obtained by the husband of plaintiff under a Kudikidappu.

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Later on, the remaining extent of 15 cents purchased under Ext.A1 deed of the year 1979. The second defendant is the western property owner. She had filed written statement. Subsequently, she sold her property to the additional third defendant. According to the plaintiff after the purchase of property by additional third defendant, her husband encroached upon a portion

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of the property of plaintiff and put up a hut therein. A Survey Commission was deputed who in

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RSA.No. 523 of 2003 5

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turn prepared a survey plan of the plaint schedule

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property and located the property belonged to the plaintiff comprised in survey No.427/11/1. The Commissioner has also located a portion of property wherein the hut was constructed, out of the property owned by the plaintiff. According to the plaintiff, this mischief has been done by the husband of third defendant during the pendency of the suit. But, no application was submitted for restoring anti status quo position and no amendment also sought for incorporating a prayer for fixation of boundary and recovery of the encroached portion inspite of a subsequent development alleging encroachment upon a portion of property owned by the plaintiff. In the said circumstance, the learned counsel for the appellant pressed for a remand of the matter to the Trial Court, so as to advance justice to the parties. Since, a Survey Commission was deputed who in turn prepared a plan in accordance with the document of title and survey record, locating encroached portion by the third defendant, I am of

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RSA.No. 523 of 2003 6

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the view that for the interest of justice, it is

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fit and proper to grant an opportunity to the plaintiff to amend the plaint by incorporating substantial prayers.

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The appeal hence allowed accordingly. The

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decree and judgment of the Trial Court and the First Appellate Court set aside. The matter is remanded back to the Trial Court for the above said purpose. The parties shall appear before the

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Trial Court on 29/03/2019. The Trial Court shall

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dispose of the matter within a period of three months from the date of appearance of parties.

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The appeal is allowed in part accordingly. No costs.

Sd/-

P.SOMARAJAN

JUDGE

MSP

//TRUE COPY//

P.A.TO JUDGE

Madhavi v. Raghavan Pillai (Deleted)

Case brief

What is this about?

What did the court decide?

Madhavi v. Raghavan Pillai (Deleted)

Case brief

What is this about?

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What the court decided

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