Remanded

Sadrack v. Christudanam

Kerala HC25 Nov 2019RSA/592/2009

Case brief

AI extract

What is this about?

The High Court set aside the lower courts' decree in a suit for declaration of title and injunction. Due to a dispute regarding property identity and measurement discrepancies in title deeds, the matter was remanded to the trial court for identification by a Commissioner and Surveyor.

What did the court decide?

Decree and judgment of courts below set aside; matter remanded to trial court for disposal de novo with identification of property by Commissioner.

Sadrack Vs Christudanam — 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 SATHISH NINAN

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MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941

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RSA.No.592 OF 2009(D)

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AGAINST THE JUDGMENT AND DECREE IN AS 212/2001 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM

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AGAINST THE JUDGMENT AND DECREE IN OS 1273/1993 OF PRINCIPAL MUNSIFF COURT ,TRIVANDRUM

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APPELLANT/APPELLANT/DEFENDANT NO.2:

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SADRACK, S/O YESUVAIDYAN, ROSE BHAVAN, PUTHEN VEEDU, POWDIKONAM, THIRUVANANTHAPURAM.

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BY ADVS.

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SRI.R.SUNIL KUMAR SMT.A.SALINI LAL

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RESPONDENTS/RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT:

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1 CHRISTUDANAM, S/O YESUVAIDYAN CHRISTUDASA SADANAM, PUTHUKUNNU, POWDIKONAM PO, THIRUVANANTHAPURAM.

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2 SAM, S/O YESUVAIDAN PUTHUKUNNU, PUTHEN VEEDU, POWDIKONAM, THIRUVANANTHAPURAM.

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R1 BY ADV. SRI.D.GANESH KUMAR R1 BY ADV. SMT.K.I.KAVITHA

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.592 OF 2009(D)

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Sathish Ninan, J.

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============================== R.S.A No.592 of 2009 ========================== Dated this the 25^th day of November, 2019

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JUDGMENT

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The second defendant in a suit for declaration

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of title and injunction is the appellant. The suit was concurrently decreed by the courts below.

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The plaint schedule property has an extent

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of 7 cents. The plaintiff claims title over the property as per Ext A3 sale deed. A larger extent of 17.610 cents belonged to the plaintiff as per Ext B3 partition deed of the year 1968. As per Ext A2 sale deed of the year 1985 he conveyed the entire 17.610 cents in favour of his sister, Resalamma. Subsequently as per Ext B1 sale deed of the year 1985 she conveyed the western most 10.610 cents out of the larger extent, in favour of second defendant. Subsequently the said Resalamma conveyed the remaining 7 cents in favour of the plaintiff as per

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RSA.No.592 OF 2009(D)

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Ext A4. It is thus that the plaintiff claims title

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over the plaint schedule property. Though there is a subsequent conveyance and sale back in favour of the plaintiff as per Ext.A1 sale, the same is not material for the purpose of the suit.

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The second defendant filed a written statement disputing the identity of the plaint schedule property and further contended that there is no such property left behind after conveyance under Ext B1 sale deed in his favour.

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The trial court after appreciating the

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evidence granted a decree in favour of the

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plaintiff. The decree was confirmed in appeal. Aggrieved the second defendant is in appeal.

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Heard Adv. Sri.D.Ganesh Kumar, learned

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counsel on behalf of the appellant – second

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defendant and Adv. Sri. R.Sunil Kumar, learned counsel on behalf of the first respondent – plaintiff on the following substantial question of law:-

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RSA.No.592 OF 2009(D)

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“Did not the courts below err in

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decreing the suit without having the plaint schedule property identified based on the documents of title”.

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The identity of the plaint schedule property

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is in dispute. That originally an extent of 17.610 cents belonged to the plaintiff under Ext B3 is not in dispute. The rights of the plaintiff over the said property was obtained by his sister Resalamma under Ext A2 sale deed. The present appellant obtained 10.610 cents from Resalamma as per Ext B1, specifying the location of the property to be on the western extremity of the 10.610 cents and lying north – south. It is thereafter that the remaining extent of 7 cents is purported to be conveyed by Resalamma in favour of the plaintiff. The learned counsel for the appellant points out that, going by the description of the property in Ext B3 partition, the southern side measurement of the entire 17.610 cents is only 72 links. From the said property, the western most 10 cents lying north – south is

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RSA.No.592 OF 2009(D)

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conveyed to him under Ext B1. It is only the remaining property that could be conveyed to the plaintiff. However, in Ext A3 sale deed in favour of the plaintiff, the south side measurement is stated to be 67 links. It is highly improbable that 67 links width property would be available after conveying more than half of the total extent to the appellant, is the submission. The said contention deserves consideration and adjudication. However the properties were not identified with reference to the sale deeds and with the assistance of a Commissioner and Surveyor. Without a proper identification, in the circumstances as noticed supra, the courts below were not right in granting a decree. The substantial question of law is thus answered in favour of the appellant.

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I am of the opinion that an opportunity be

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granted to the plaintiff to have his property identified. Needless to mention that the conveyance, Ext B1 being earlier in point of time necessarily the Commissioner will have to identify the western

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RSA.No.592 OF 2009(D)

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most 10.610 cents lying north – south in terms of Ext B1. It is the remaining property on the eastern side which is to be identified as the property purchased by the plaintiff under Ext A3 sale deed. The trial court shall issue a Commissioner and Surveyor for proper identification of the plaint schedule property.

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In the result, the decree and judgment of

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the courts below on the plaint claim is set aside. The matter is remanded back to the trial court for disposal denovo in the light of the observations made above. It is made clear that the decree passed on the counter claim raised by the first defendant regarding a right of way, is kept intact.

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Parties to appear before the trial court on 02.01.2020.

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Sd/- Sathish Ninan, Judge

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vdv

Sadrack v. Christudanam

Case brief

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Sadrack v. Christudanam

Case brief

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