Allowed

V.a.John, (Died) v. Thomas Mathew

Kerala HC5 Feb 2019RSA/663/2010

Case brief

AI extract

What is this about?

The Kerala High Court allowed a regular appeal regarding a suit for fixation of boundary and recovery of possession. Finding that the defect in a survey report stemmed from the Commissioner/Surveyor, the Court held that the plaintiff should not bear the blame. The decree below was set aside, and the matter was remanded to issue a fresh survey commission within six months.

What did the court decide?

The decree and judgment of lower courts set aside; matter remanded to Trial Court to issue fresh Survey Commission after mutually suggested surveyor and dispose suit within 6 months.

V.a.John, (Died) Vs Thomas Mathew — 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 P.SOMARAJAN

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TUESDAY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940

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RSA.No. 663 of 2010

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AGAINST THE JUDGMENT AND DECREE DATED 30-11-2009 IN AS 143/2006 of ADDL.DISTRICT COURT,PATHANAMTHITTA

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AGAINST THE JUDGMENT AND DECREE DATED 31-05-2006 IN OS 185/1999 of MUNSIFF COURT, RANNI

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SECOND APPELLANT/APPELLANT/PLAINTIFF:

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^{V.A.JOHN, S/O LATE V/J.ABRAHAM, AGED 80 YEARS,} VALIYATHARAYIL HOUSE,PEZHAUMPARA.P.O,KUMARAMPEROOR, VADAKKEKARA MURI,VADASSERIKKARA VILLAGE, RANNY RALUK, NOW AT PEZHUMPARA P.O VADASSERIKKARA VILLAGE, PATHANAMTHITTA DIST-689662. (DIED, L.R.S IMPLEADED)

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ADDL.APPELLANTS

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2 ALEYAMMA JOHN, W/O LATE V.A.JOHN, AGED 75, VALIYATHARYIL HOUSE, PEZHUMPARA PO, PADASSERIKKARA VILLAGE, PATHANAMTHITTA DIST, PIN- 689 662

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3 JOHN V. ABRAHAM, S/O LATE V.A. JOHN, AGED 53, VALIYATHARAYIL HOUSE, PEZHUMPARA PO, PADASSERIKKARA VILLAGE, PATHANAMTHITTA DIST., PIN-689 662

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4 JOH V. CHERIYAN, S/O LATE V.A. JOHN, AGED 48, VALIYATHARAYIL HOUSE, PEZHUMPARA PO, PADASSERIKKARA VILLAGE, PATHANAMTHITTA DIST., PIN - 689 662

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5 MERY JOHN, D/O LATE V.A.JOHN, AGED 44, PERUMARATHINKAL HOUSE, AYROOR SOUTH PO, PATHANAMTHITTA DIST., PIN-669 811

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*THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 5 AS PER ORDER DATED 06/11/2014 IN I.A.2641/2014.

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RSA.No. 663 of 2010 2

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BY ADV. SRI.S.SREEKUMAR (SR.)

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 THOMAS MATHEW, S/O K.V.THOMAS, AGRICULTURIST, AGED 46 YEARS,KOCHUVEETTIL HOUSE, KUMARAMPEROOR,VADAKKEKKARA MURI,VADASSERIKKARA VILLAGE,RANNI TALUK, NOW AT PEZHUMPARA.P.O-689662.

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2 KOSHY DANIAL, S/O KOSHY, COMPANY EMPLOYEE, AGED 35, PULIVELILAYA,PANTHURUNAZHIYIL HOUSE, KUMARAMPEROOR, VADAKKEKKARA MURI,VADASSERIKKARA VILLAGE, RANNI TALUK, PEZHUMPARA.P.O-689662.

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R2 BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX R1 BY ADV. SRI.V.PHILIP MATHEW

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 663 of 2010 3

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JUDGMENT

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Aggrieved by the concurrent finding rendered by

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both the Trial Court (Munsiff's Court, Ranny) in

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O.S.No.185/1999 and by the First Appellate Court (Addl. District Court, Pathanamthitta) in

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A.S.No.143/2006, in dismissing a suit for fixation of boundary and recovery of possession, the plaintiff came up with this appeal.

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The plaintiff is the purchaser of plaint

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schedule item No.1 property having an extent of 72 cents out of large extent of 1 acre 3 cents from the second defendant. Another extent of 26 cents of property was also purchased by the predecessor in interest of the first defendant on the same day from the second defendant. The extent of property which

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was held by the second defendant comes to

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1 acre 3 cents. It is a portion of large extent of 3 acre 98 cents (as per the registered holding comes to 3 acre 47 cents). A Survey Commission was deputed by the plaintiff in the Trial Court who in turn visited the property and prepared Ext.C2 plan and report. It

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RSA.No. 663 of 2010 4

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was not accepted by the Trial Court as the location and identity of the property is not in accordance

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with the document of title of plaintiff and consequently the suit was dismissed. In the first appellate stage also the very same view was taken and the appeal was dismissed confirming the dismissal of

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the suit. Aggrieved by the said decrees and judgments, the plaintiff came up with this appeal.

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The questions came up for consideration in this appeal are:

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1. Whether the First Appellate Court and

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the Trial Court ar e justified in not

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affording an opportunity to the plaintiff to issue a fresh Commission for locating the property, when the Commission issued and the

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plan prepared found to be not in accordance with the description given in the title deed.

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2. Whether the Trial Court and the First Appellate Court are justified in dismissing the suit without affording an opportunity to the plaintiff, when the plaintiff is not at fault regarding the mistake committed by the

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RSA.No. 663 of 2010 5

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Commissioner/Surveyor while preparing the plan.

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There is no much dispute with respect to the acquisition of title by the respective parties, plaintiff and the second defendant (through his predecessor) over 72 cents of property and 26 cents of property respectively from the second defendant, who was holding a large extent of registered holding of 1 acre 3 cents. It forms a large extent of registered holding of 3 acre 47 cents. The

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Commissioner who visited the property, had not located the large extent of 103 cents held by the second defendant at the time of preparation of Ext.C2, out of the large extent of 3 acre 47 cents available in the same survey number. The properties of plaintiff as well as the defendants were located in Ext.C2 plan without locating the large extent of 103 cents. The correct location and lie of the property of plaintiff and the defendant can be located only after locating the large extent of 1 acre 3 cents out of 3 acre 47 cents of registered holding. The fault committed by the Commissioner and

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Surveyor cannot be put on the shoulder of the

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RSA.No. 663 of 2010 6

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plaintiff, when he had opted to issue a Survey Commission to locate his property by meeting the expenditure incurred in that behalf. The First Appellate Court has not even considered the above said question. The learned counsel for the appellant brought to the notice of this Court a recent decision

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rendered by the Apex Court in Civil Appeal No.8285/2009 regarding the procedure to be adopted by the Court. When a survey report prepared through the Survey Commission found to be not acceptable, on the reason of any mistake or fault committed by the Surveyor or the Commissioner as the case may be, it is not at all fit or proper to dismiss the suit and the appeal on that sole reason.

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The learned counsel for the second defendant

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and the first defendant submitted that the properties were situated with well defined boundaries, a Kayyala and that was pleaded in the written statement. It is also pleaded in the written statement that the Kayyala is a permanent wall and it is the separating boundary of the property of plaintiff from that of the defendant. But, according to the plaintiffs there is no specific boundary separating the properties.

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RSA.No. 663 of 2010 7

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Both the plaintiff and the first defendant are really

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litigating under the second defendant regarding registered holding held by him having an extent of 1 acre 3 cents and as such an issuance of a fresh

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Commission, when the earlier one found to be defective and not accepted due to any mistake or default on the part of Commissioner or the Surveyor, as the case may be, cannot be avoided and no blame

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can be attached or put on the shoulder of the plaintiff. Hence, it is highly necessary to issue a fresh Commission and both the Trial Court or the

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First Appellate Court ought to have granted an opportunity to the plaintiff to issue a fresh Survey Commission that has not been done by both the courts below and it has resulted in miscarriage of justice. The appeal hence liable to be allowed in part. The decree and judgment of both the Trial Court and the First Appellate Court are set aside. The matter is remanded back to the Trial Court for fresh disposal in accordance with law. The Trial Court shall issue a fresh Survey Commission, after giving an opportunity

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to both the parties to suggest the name of a qualified surveyor and to dispose of the suit at the

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RSA.No. 663 of 2010 8

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earliest, positively within a period of 6 months. The parties shall appeal before the Trial Court on 25/02/2019. No order as to costs.

Sd/-

P.SOMARAJAN

JUDGE

//TRUE COPY//

P.A. TO JUDGE

msp

V.a.John, (Died) v. Thomas Mathew

Case brief

What is this about?

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V.a.John, (Died) v. Thomas Mathew

Case brief

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