Allowed

George v. John

Kerala HC26 Nov 2019RSA/649/2012

Case brief

AI extract

What is this about?

The High Court, Ernakulam allowed an appeal in a suit for declaration of title and possession between siblings. The Court found the lower appellate court erred in proceeding without proper identification of the plaint schedule property, as directed in a prior remand order. The appeal was allowed, the decree set aside, and the suit remanded subject to the respondent paying costs.

What did the court decide?

The appeal was allowed; the impugned decree and judgment were set aside; the suit remanded for fresh disposal after proper identification of properties; respondent to pay Rs. 25,000 as costs.

George Vs John — 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 SATHISH NINAN

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TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941

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RSA.No.649 OF 2012

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AGAINST THE JUDGMENT AND DECREE DATED 30.11.2011 IN AS 40/2010 ON THE FILE OF THE COURT OF THE ADDL. DISTRICT & SESSIONS COURT, PALA ARISING OUT OF THE JUDGMENT AND DECREE DATED 03.03.2008 IN OS 142/86 OF MUNSIFF'S COURT, PALA

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-----

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APPELLANT/RESPONDENT/DEFENDANT:

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GEORGE,

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S/O. THOMMAN, PULIKUNNEL HOUSE, THIDANADU KARA, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.

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RESPONDENT/APPELLANT/PLAINTIFF:

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JOHN,

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S/O. THOMMAN, PULIKUNNEL HOUSE, THIDANADU KARA, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT-691571.

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R1 BY ADV. SRI.GEORGE VARGHESE R1 BY ADV. SRI.P.R.MILTON R1 BY ADV. SMT.SALI. P. MATHEW MUNNAR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2019, THE COURT ON 26.11.2019 DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = RSA No.649 of 2012

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= = = = = = = = = = = = = = = = = = Dated this the 26^th day of November, 2019

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JUDGMENT

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The defendant in a suit for declaration of title, recovery of possession and prohibitory injunction is the appellant. He had raised a counter claim for prohibitory injunction against trespass. The trial court dismissed the suit and decreed the counter claim. On appeal by the plaintiff, the decree was reversed.

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The parties are siblings. Under Ext.A1 Partition Deed of the year 1959, two items of properties namely, an extent of 1.23 acres and an extent of 1.63 acres were allotted to the plaintiff as included in 'G' schedule item nos.1 and 2 respectively; thus making the total extent at 2.86 acres. In the said partition, the defendant was allotted three items in the 'F' schedule. Since in the present suit, we are concerned only about item nos.2 and 3 therein, the same alone are being adverted to. 'F' schedule item no.2 has an extent

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RSA No.649 of 2012

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:- 2 :-

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of 2.23 and 1/4 acres and 'F' schedule item no.3 has an extent of 71 and 1/4 cents making the total at 2.95 acres. The 'F' schedule items belonging to the defendant lies on the eastern and southern sides of 'G' schedule item no.1. Alleging trespass by the defendant, the suit is filed for recovery of 33 cents from out of 'G' schedule item no.1.

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The defendant contended that he is in possession of the properties allotted to him under Ext.A1 partition deed, thus denied the allegation of trespass.

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Originally the suit was dismissed by the trial court and the counter claim was decreed. There was a first appeal and second appeal challenging the same. This Court in SA 155/98 set aside the decree and judgment and remanded the matter back to the trial court for disposal de novo after proper identification of the plaint schedule property. Thereafter, the suit was dismissed by the trial court and the counter claim was decreed. On appeal by the plaintiff the decree was reversed. Aggrieved, this appeal by the defendant.

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RSA No.649 of 2012

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:- 3 :-

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Heard Sri.G.P.Shinod learned counsel for the appellant and Sri.George Varghese (Manachirackel) for the respondent-plaintiff on the following substantial question of law:-

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“(i) Did not the lower appellate court commit a basic error in proceeding on the assumption that the correctness of the commissioner's report and plan remained un-objected by the parties.

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(ii) Did not the lower appellate court fail to consider the findings and direction in the order of remand in SA 155/98”.

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As noticed supra, this Court in the judgment in SA 155/98 held that the identification of the plaint schedule property is not proper and remanded the suit for disposal after proper identification. This Court took note of the fact that the plaint schedule property is included in Sy. No.1572/1C; that under Ext.A1 partition, portions of the property in the said survey number were allotted to other sharers also; and that unless the entire property in the said survey number is identified, it could not be found out if there is deficit in

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RSA No.649 of 2012

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:- 4 :-

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extent which will have a bearing on the extent of property that the plaintiff is entitled to. In the order of remand dated 13.06.2006, this Court held thus:-

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“..... The plaintiff and defendant are claiming the properties under the very same document and under the very same survey number. Other sharers are also allotted properties on the very same survey number. So for a proper evaluation and appreciation of the materials, the trial court found that the entire property comprised in that survey number has to be measured, demarcated and fix in accordance with boundaries, discretions, measurements and survey stone. One cannot find fault with that order of the trial court and it has to be held that the said order has not been shaken by any other order even by the appellate judge who considered the appeal. The appellate judge really ignored the orders passed by the learned Munsiff and its noncompliance by the Commissioner.”

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Pursuant to the order of remand, a

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commission was taken out who prepared Exts.C2 and C2(a) plan. The same was sought to be set aside as

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RSA No.649 of 2012

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:- 5 :-

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it was not prepared in compliance with the earlier directions. The same was remitted back to the commissioner. However, for lack of necessary assistance, no further measurement was done. The trial court in its judgment has recorded that the parties agreed to proceed with for disposal of the case based on the available report and plan. It is to be borne in mind that in the earlier round of litigations, it was specifically found that the plaint schedule property is not correctly identified and it was for the purpose of identification that the suit was remanded. The remaining property in the same survey number viz. survey no.1572/1C was not identified after remand. The property in the said survey number held by the other sharers to Ext.A1 partition was not identified pursuant to the remand. Therefore, apparently there is non-compliance with the directions in the order of remand by this Court. That apart, it is to be noticed that the plaintiff has property adjoining 'G' schedule item no.1 which is allotted to him in 'G' schedule item no.2 to

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RSA No.649 of 2012

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Ext.A1. These properties lie together. Even the said property has not been identified. Therefore, the appellate court erred in finding that the plaint schedule property has been identified. Further, in paragraph 12 of the appellate court judgment it is observed thus:-

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“Exts.C1 & C2 reports and C2(a) plan can be looked into in coming to a conclusion regarding this case. The correctness of Ext.C1 and C2 commission report are not doubted anywhere.”

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As is evident from the facts noticed above, the said observation is not correct. There has been misconception of facts by the lower appellate court. It can only be held that the plaint schedule property has not been identified by the plaintiff. The trial court was right in dismissing the suit. The substantial question of law is thus answered in favour of the appellant-defendant.

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The learned counsel for the respondentplaintiff prays that one more opportunity may be granted to have the plaint schedule property

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RSA No.649 of 2012

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identified. The suit is of the year 1986. This Court had earlier granted the plaintiff opportunity to have the plaint schedule property identified. The benefit of the same was not availed of by him. Any further remand will necessarily cause much inconvenience to the other side. However, considering the fact that the suit is one on title, I feel that one more opportunity could be granted to the plaintiff to get the plaint schedule property identified and get the suit decided on its merits. Of course, this can only be subject to heavy terms.

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In the result, this appeal is allowed. The impugned decree and judgment are set aside. The suit is remanded back to the trial court for fresh disposal after proper identification of the properties. However, this shall be subject to the condition that the respondent-plaintiff pays an amount of `25,000/- as costs to the learned counsel appearing for the appellant-defendant before this Court within a period of three weeks from today. In the event of non-payment of the costs, the suit

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RSA No.649 of 2012

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will stand dismissed. On compliance with the directions of payment of costs, the parties shall appear before the trial court on 19.12.2019.

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Sd/SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

George v. John

Case brief

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George v. John

Case brief

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