Remanded

Sarasamma v. Vedakannu Sukumaran

Kerala HC17 Jul 2019SA/158/2000

Case brief

AI extract

What is this about?

Second appeal arising from a suit for redemption, boundary fixation, and injunction. The court held that purchase certificates were issued for 79 cents excluding 25 cents, which prima facie suggests the suit property is not covered. The judgment set aside lower court decrees and remanded the matter for a survey commission to determine the exact property extent covered by the purchase certificates.

What did the court decide?

The decree and judgment of the trial court and first appellate court were set aside. The matter was remanded to the trial court to issue a survey commission to ascertain the extent of property covered

Sarasamma Vs Vedakannu Sukumaran — 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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WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941

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SA.No.158 of 2000

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AGAINST THE DECREE & JUDGMENT DATED 29-07-1999 IN AS 374/1996 of SUB COURT, NEDUMANGAD

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AGAINST THE DECREE & JUDGMENT DATED 24-01-1995 IN OS 16/1993 of ADDITIONAL MUNSIFF COURT, NEDUMANGAD DATED 24-01-1995

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APPELLANTS/RESPONDENTS/DEFENDANTS:

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1 SARASAMMA, W/O.SIMSON, CHAYKULATH, ARUVIKONATHU VEEDU, VEERANAKAVU MURI, VEERANAKAVU VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM.

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2 SURENDRAN, S/O.SARASAMMA,CHAYKULATH, ARUVIKONATHU VEEDU, VEERANAKAVU MURI,VEERANAKAVU VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM.

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3 CHANDRAN, S/O.SARASAMMA,CHAYKULATH, ARUVIKONATHU VEEDU, VEERANAKAVU MURI,VEERANAKAVU VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM.

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BY ADVS. SRI.NAGARAJ NARAYANAN SRI.BENOJ C AUGUSTIN SRI.SAIJO HASSAN SRI.VISHNU BHUVANENDRAN

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RESPONDENT/APPELLANT/PLAINTIFF:

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VEDAKANNU SUKUMARAN, CHAYKULATH, ARUVIKONATHU KIZHAKKUMKARA VEEDU, VEERANAKAVU MURI,VEERANAKAVU VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM.

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BY ADVS. SRI.R.S.KALKURA SRI.S.ANANDASUBRAMANIYA IYER

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SA.No.158 of 2000 2

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JUDGMENT

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The defendants came up with this appeal

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aggrieved by the divergent finding rendered by the first appellate court in decreeing the suit for

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fixation of boundary and recovery of possession and injunction. The trial court dismissed the suit, it was reversed in appeal. Aggrieved by the said decree and judgment, the defendants came up with this appeal.

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25 cents form part of large extent of 1 acre 4

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cents outstanding in mortgage with one Daveed

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Vedakannu. A suit for redemption was filed in O.S.No.576 of 1968 which happened to be dismissed.

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The above said plaintiffs are the legal

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representatives of the above said Vedakannu. He executed a Ottikuzhikanam (mortgage) in respect

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SA.No.158 of 2000 3

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of the said property in favour of one Thomson and his wife Daisy in respect of 1 acre and later on they redeemed the mortgage by executing a release deed and thereby Vedakannu retained the mortgage over 1 acre and 4 cents. Vedakannu while so

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executed Ext.B3 assignment of mortgage dated 1.11.1957 in respect of the plaint schedule 25 cents of property in favour of a third person, from whom the husband of first defendant, one Simson obtained assignment of mortgage under Ext.B4. Later on he had instituted O.S.No.188 of 1979 for fixation of boundary, it was dismissed under Ext.A1 and confirmed by the first appellate court in Ext.A2 and confirmed by this court in Ext.A3 second

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appeal and thereby it has become final and conclusive, wherein it was found that Ext.B4

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assignment of mortgage is not valid and not taken into effect. The said finding become final and

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SA.No.158 of 2000 4

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conclusive, it would operate against the legal heirs of Simson, the first defendant his wife and his children the defendants 2 to 4. But it would not in any way confer any title to the property with the plaintiffs. The plaintiffs are the LRs. Of Vedakannu and the suit was filed without seeking substantial relief of declaration of title, over the plaint schedule 25 cents of property. It is true that they had obtained purchase certificate Exts.B1 and B2, but for 79 cents out of One acre 4 cents. 25 cents seen excluded out of 1 acre 4 cents at the time of issuance of Exts.B1 and B2 purchase certificate.

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The question whether the plaint schedule property having an extent of 25 cents would form part of the 79 cents of property over which the purchase certificates were issued neither considered

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nor adjudicated by the courts below, for which no

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SA.No.158 of 2000 5

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survey commission was issued. On the other hand, the fact that purchase certificate was granted only with respect to 79 cents excluding 25 cents out of 1 acre 4 cent would prima facie show that the plaint schedule will not form part of the property covered by Exts.B1 and B2 purchase certificate. But it has to be ascertained by issuing a survey commission. For that purpose, 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. The parties shall appear before the trial court on 05/08.2019. No order as to costs of appeal.

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Sd/-

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P.SOMARAJAN, JUDGE

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// TRUE COPY // PA TO JUDGE

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Sarasamma v. Vedakannu Sukumaran

Case brief

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Sarasamma v. Vedakannu Sukumaran

Case brief

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