Partly allowed

Padmanabhan v. Kuriakose

Kerala HC25 Jul 2019RSA/880/2007

Case brief

AI extract

What is this about?

The High Court allowed both appeals in part, modifying decrees from lower courts in property suits. The recovery of a negligible encroached land portion was rejected and the boundary fixed per agreed plan. In the other suit, excavation was restrained to protect lateral support without affecting the defendant's leveling rights.

What did the court decide?

Recovery of possession rejected; boundary fixed as A,B,C,D,E,F,G,H,I line in Ext.C2(a) plan. Recovery of possession rejected. Excavation restrained to protect lateral support.

Padmanabhan Vs Kuriakose — Partition | 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 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941

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RSA.No.241 of 2006

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AGAINST THE JUDGMENT AND DECREE DATED 29-06-2005 IN AS 315/2005 of DISTRICT COURT, ERNAKULAM

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AGAINST THE JUDGMENT AND DECREE DATED 26-06-2001 IN OS 15/1998 of MUNSIFF COURT, KOLENCHERRRY

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APPELLANT/APPELLANTS/DEFENDANTS:

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1 KURIAKOSE, AGED 45, S/O. PATHROSE KARAVATTKUZHIVELIL HOUSE, PANCODE KARA, AICKARANAD NORTH VILLAGE.

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*2 MARY, AGED 40 YEARS, W/ O.KURIAKOSE ..DO..........DO.(DIED)

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ADDITIONAL APPELLANTS 3 AND 4

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3 MANJU KUZHIVELIL, AGED 40, D/O KURIAKOSE KARAVATTKUZHIVELIL HOUSE, PANCODE KARA, AICKARANAD NORTH VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER KURIAKOSE, AGED 59, S/O PATHROSE, KARAVATTKUZHIVELIL HOUSE, PANCODE KARA, AICKARANAD NORTH VILLAGE.

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4 RINJU KUZHIVELIL, AGED 37, KARAVATTKUZHIVELIL HOUSE, PANCODE KARA, AICKARANAD NORTH VILLAGE. REPRESENTED BY POWER OF ATTORNEY HOLDER KURIAKOSE, AGED 45, S/O PATHROSE, KARAVATTKUZHIVELIL HOUSE, PANCODE KARA, AICKARANAD NORTH VILLAGE.

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THE LEGAL HEIRS OF DECEASED SECOND APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 3 AND 4 AS PER ORDER DTD.17/06/2019 IN I.A.2/2019

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BY ADV. SRI.K.V.JAYACHANDRAN

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[RSA 241/2006,RSA.880/2007] 2

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RESPONDENTS/RESPONDENT/PLAINTIFF:

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PADMANABHAN, AGED 48, S/O.EDAMANACKUDY HOUSE, PANCODE P.O., VADAVUCODE VIA ERNAKULAM, NOW RESIDING AT, HOUSE NO.1759 ARYA BASTI KOTLAMUBARAPUR LODHI, ROAD P.O. NEW DELHI 11003.

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BY ADV.SRI.V.RAJENDRAN (PERUMBAVOOR)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2019, ALONG WITH RSA.880/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[RSA 241/2006,RSA.880/2007] 3

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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 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941

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RSA.No.880 of 2007

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AGAINST THE JUDGMENT AND DECREE DATED 11-01-2007 IN AS 153/2003 of PRINCIPAL SUB COURT, NORTH PARAVUR

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AGAINST THE JUDGMENT AND DECREE DATED 23-08-2003 IN OS 511/1989 of MUNSIFF COURT, PERUMBAVOOR

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APPELLANT/RESPONDENT/DEFENDANT:

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PADMANABHAN, AGED 50,

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S/O. SANKU, EDAMANAKKUDY, PAMCODE KARA, AIKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK.

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BY ADVS.

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SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM

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RESPONDENT/APPELLANT/PLAINTIFF:

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KURIAKOSE, S/O PATHROSE, KARAVATTE KUZHIVELIL HOUSE, PAMCODE KARA, AIKARANAD NORTH VILLAGE.

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BY ADVS.

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SRI.K.V.JAYACHANDRAN SRI.RAJU V.MATHEW

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2019, ALONG WITH RSA.241/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[RSA 241/2006,RSA.880/2007] 4

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JUDGMENT

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These two appeals came up against the decree

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and judgment in two suits and the appeals thereof.

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The suit in O.S.No.289/1990 (subsequently

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numbered as O.S.No.15/1998, after transfer) was decreed concurrently by both the Courts below fixing the boundary and making Ext.C2(a) plan as

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part of the decree, wherein the green shaded portion located as the encroached portion, and a decree for recovery of possession was also granted.

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When the matter came up for hearing the learned counsel for respondent fairly submitted that they don't want the encroached portion to be recovered from the defendant, as it was only a negligible extent having an extent of 0.0031 hector equivalent to .766 sq. links. It was fairly conceded by the learned counsel for the respondent that the

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boundary of their property can be fixed excluding the encroached portion shown as in green shade in

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Ext.C2(a) plan. In Ext.C2(a) plan, the encroached

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[RSA 241/2006,RSA.880/2007] 5

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portion located as two plots by giving green shade. The property of the defendant in O.S.NO.289/1990 (O.S.NO.15/1998) located by giving red shade. The green shaded portion of property was found to be the part of registered holding of plaintiff in that

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suit. The counsel for the plaintiff fairly submitted that they don't want any recovery of possession of the green shaded portion and the same

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can be treated as the part of property of the defendant therein. It is also fairly conceded by the learned counsel that the line separating the green shaded portion on the west and red shaded portion on the east can be fixed as the boundary separating the property of plaintiff from that of the defendant, by which the defendants property would take both the red shaded portion and green shaded portion as per Ext.C2(b) plan. In that plan the property of the plaintiff is not located. It is located in Ext.C1(a) plan in O.S.No.15/1998. For the purpose of location of property of plaintiffs that plan can be accepted. This plan would show the respective location of property of plaintiff

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[RSA 241/2006,RSA.880/2007] 6

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and the defendant. As per Ext.C1(a) plan, the

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property of defendant is on the north of the property of plaintiff. As agreed by both the

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counsel, the dividing line is marked by this Court

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by giving letters A,B,C,D,E,F,G,H. The decree and

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judgment of both the courts below are modified to that extent by fixing the dividing line between the

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property of plaintiff and the defendant as

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A,B,C,D,E,F,G,H,I line in Ext.C2(a) plan in

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O.S.No.15/1998. The prayer for recovery of possession is rejected and decree of both the

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courts below will stand modified to that extent.

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The Ext.C2(a) plan and the plan produced exhibited as Ext.C1(a) will form part of the decree.

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that further excavation will not be conducted in

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the property of plaintiff who is the defendant in

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the other suit in O.S.NO.511/1989. The decree

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granted in that suit will stand modified

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restraining the defendant in that suit

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excavation, so as to destroy the lateral support of

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[RSA 241/2006,RSA.880/2007] 7

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the property of plaintiff, but it will not in anyway affect the right of defendant to level his property.

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The suit in O.S.No.15/1998 also will stand

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modified by granting a decree fixing the boundary

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of plaintiff and the defendant as the A,B,C,D,E,F,G,H,I line in Ext.C2(a) plan. The relief of recovery of possession rejected. Both

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the appeals will stand allowed in part accordingly. No costs.

Sd/-

P.SOMARAJAN

JUDGE

//TRUE COPY//

P.A. TO JUDGE

msp

Padmanabhan v. Kuriakose

Case brief

What is this about?

What did the court decide?

Padmanabhan v. Kuriakose

Case brief

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