Partly allowed

Ramath Kandiyil Balakrishnan Nambiar v. Nidiya Parambath Sankaran Nambiar

Kerala HC4 Jul 2019RSA/61/2004

Case brief

AI extract

What is this about?

Second appeal against recovery of possession decree. Court held final partition decree is binding and cannot be deviated from. Remanded matter to Trial Court for fresh disposal using correct decree parameters.

What did the court decide?

Appeal allowed in part. Decree of recovery set aside. Matter remanded to Trial Court for fresh disposal within five months based on original final decree.

Ramath Kandiyil Balakrishnan Nambiar Vs Nidiya Parambath… — 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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THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941

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RSA.No.61 of 2004

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AGAINST THE JUDGMENT AND DECREE DATED 07-10-2003 IN AS 49/1999 of SUB COURT, VADAKARA

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AGAINST THE JUDGMENT AND DECREE DATED 18-11-1998 IN OS 57/1992 of MUNSIFF COURT, VADAKARA

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APPELLANT/RESPONDENT/DEFENDANT:

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RAMATH KANDIYIL BALAKRISHNAN NAMBIAR, S/O.KUNHIRAMA KURUP, AGED 50 YEARS,, RAMATH KANDIYIL, PUTHUPPANAM.

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BY ADVS. SRI.R.PARTHASARATHY SMT.S.LAKSHMY

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RESPONDENT/APPELLANT/PLAINTIFF:

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*** NIDIYA PARAMBATH SANKARAN NAMBIAR PUTHUPPANAM AMSOM, DESOM, VADAKARA TALUK. (DIED)**

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LHR'S IMPLEADED AS SUPPLEMENTAL RESPONDENTS 2 TO 6

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2 DIVAKARAN, S/O LATE NIDIYA PARAMBATH SANKARAN NAMBIAR, PUTHUPPANAM AMSOM, DESOM, VADAKARA TALUK.

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3 SUDHAKARAN -DO-

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4 SREENIVASAN -DO-

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5 THILAKAN -DO-

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6 SUJATHA D/O LATE NIDIYA PARAMBATH SANKARAN NAMBIAR, PUTHUPPANAM AMSOM, DESOM, VADAKARA TALUK. (NAME CORRECTED)

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THE NAME OF THE ADDITIONAL 6TH RESPONDENT IS

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CORRECTED AS 'SUDHATHY' INSTEAD OF SUJATHA AS PER THE ORDER DATED 23/11/2018 IN I.A..1/2018.

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LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS SUPPLEMENTAL REPONDENTS 2 TO 6 AS PER THE ORDER DATED 28/5/2019 IN I.A. 1579/2010

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BY ADV. SRI.MOHANAN V.T.K.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.61 of 2004

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JUDGMENT

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The defendant came up with this appeal, aggrieved by the decree and judgment of the First Appellate Court (Sub Court, Vadakara) in A.S.No.49/1999 reversing the decree and judgment of the Trial Court (Munsiff's Court, Vadakara) in O.S.No.57/1992. The First Appellate Court granted a decree of recovery of possession of encroached portion of property based on a plan prepared by the Commissioner Ext.C9. The plaintiff claims title over the property based on a final decree passed in

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a partition suit Ext.A1, in which plot No.5 was allotted to the share of plaintiff. The plot No.6 was allotted to the share of mother of the defendant. The plaintiff's allegation is that

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after passing of the final decree in the year 1951, the defendant encroached upon a portion of the

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property and hence the suit. The suit was

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dismissed by the Trial Court, but in appeal it was reversed by granting a decree.

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RSA.No.61 of 2004

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The questions came up for consideration

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are: Whether it is permissible to alter or deviate

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from the final decree passed in a suit for partition by the parties to the suit or the person litigating under them and whether it is permissible

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to locate the property in a subsequent suit in conflict with the final decree passed?

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What is done by the First Appellate Court by

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accepting Ext.C9 plan by granting a decree of recovery of possession of encroached portion cannot be sustained, simply on the reason that Ext.C9 plan

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was not drawn in accordance with Ext.A1 final decree of the year 1951.

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The plot No.5 allotted to the share of

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plaintiff lying in a 'L' shape and plot No.6 was

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allotted to the mother of defendant which is lying

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on the north and west of plot No.5. It was not

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located in Ext.C9 plan based on Ext.A1 final decree

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and entirely a different plan is prepared deviating from the final decree which is not permissible under law. The final decree passed is binding on

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RSA.No.61 of 2004

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the parties to the suit and the person litigating thereunder. There cannot be any deviation, substitution or addition to the final decree.

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There cannot be any modification to the final

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decree by a subsequent suit by drawing a new plan. All these are not permissible. The acceptance of

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Ext.C9 plan by the First Appellate Court is wrong hence liable to be set aside, I do so. The matter is remanded back to the Trial Court for fresh disposal by locating the properties belong to the plaintiff and the defendant in accordance with Ext.A1 final decree and to ascertain whether there is any encroachment or not. For that purpose a fresh survey Commission may be deputed. The lower Court shall dispose of the matter within a period of five months as the litigation was started in the year 1992.

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The appeal is allowed in part. The decree and

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judgment of the Trial Court and the First Appellate Court are hereby set aside. The matter is remanded

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back to the Trial Court for fresh disposal in

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RSA.No.61 of 2004

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accordance with the law in force, within a time schedule of five months from the date of appearance of parties. No order as to costs of appeal. The parties shall appear before the Trial Court on 18/07/2019.

Sd/-

P.SOMARAJAN

JUDGE

msp

//TRUE COPY// P.A. TO JUDGE

Ramath Kandiyil Balakrishnan Nambiar v. Nidiya Parambath Sankaran Nambiar

Case brief

What is this about?

What did the court decide?

Ramath Kandiyil Balakrishnan Nambiar v. Nidiya Parambath Sankaran Nambiar

Case brief

What is this about?

What did the court decide?

What the court decided

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