The High Court disposed of three first appeals contesting a First Appellate Court's order remitting a Survey Commissioner's report for fresh survey and boundary fixation regarding disputed properties. The Court explained legal positions and allowed the remand.
All three first appeals were dismissed with no costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 4th DAY OF OCTOBER 2021 / 12TH ASWINA, 1943
FAO NO. 121 OF 2013
AGAINST THE COMMON JUDGMENT DATED 31.01.2013 IN AS No.30/2008 OF SUB
COURT, KOCHI, ERNAKULAM
COMMON JUDGMENT DATED 28.02.2008 IN O.S.No. 395/1997 OF MUNSIFF
COURT, KOCHI
APPELLANT/1st RESPONDENT/PLAINTIFF:
T.P.PREMSAGAR, S/o LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29.
BY ADVS. SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR
SMT.N.V.SANDHYA
RESPONDENTS/APPELLANTS 1 TO 5/DEFENDANTS 1 TO 5/2nd RESPONDENT/6 th
DEFENDANT:
FAO Nos.121, 122 & 123 of 2013
2
6 K.R.RAJEEVAN, S/o RAVINDRAN, KALLIKUDAYIL HOUSE, PULLAR DESOM ROAD, PALLURUTHY, KOCHI -6.
R1-R5 BY ADV SMT.P.R.REENA
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 04.10.2021, ALONG WITH FAO.122/2013, 123/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO Nos.121, 122 & 123 of 2013
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 4th DAY OF OCTOBER 2021 / 12TH ASWINA, 1943
FAO NO. 122 OF 2013
AGAINST THE COMMON JUDGMENT DATED 31.01.2013 IN AS No.63/2008 OF SUB
COURT, KOCHI, ERNAKULAM
COMMON JUDGMENT DATED 28.02.2008 IN OS No.494/1997 OF MUNSIFF COURT,
KOCHI
APPELLANT/1st RESPONDENT/1 st DEFENDANT:
T.P.PREMSAGAR, S/o LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29.
BY ADVS. SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR
SMT.N.V.SANDHYA
RESPONDENTS/APPELLANTS/PLAINTIFFS 1 AND 3/RESPONDENTS 2 AND
3/DEFENDANTS 2 AND 3:
1 T.P.SUBHASHINI, W/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29.
FAO Nos.121, 122 & 123 of 2013
4
R1 & R2 BY ADVS.SMT.P.R.REENA SRI.RENJITH THAMPAN SR.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 04.10.2021, ALONG WITH FAO.121/2013 AND FAO 123/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO Nos.121, 122 & 123 of 2013
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 4th DAY OF OCTOBER 2021 / 12TH ASWINA, 1943
FAO NO. 123 OF 2013
AGAINST THE COMMON JUDGMENT DATED 31.01.2013 IN AS No. 64/2008 OF
SUB COURT, KOCHI, ERNAKULAM
COMMON JUDGMENT DATED 28.02.2008 IN O.S.No.438/2003 OF MUNSIFF COURT,
KOCHI
APPELLANT/RESPONDENT/DEFENDANT:
T.P.PREMSAGAR, S/o LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29.
BY ADVS. SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR SMT.N.V.SANDHYA
RESPONDENT/APPELLANT/ADDITIONAL PLAINTIFF No.2:
T.R.SABU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29.
BY ADVS. SMT.P.R.REENA SRI.RENJITH THAMPAN SR.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 04.10.2021, ALONG WITH FAO.121/2013 & FAO 122/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO Nos.121, 122 & 123 of 2013
6
COMMON JUDGMENT
Based on the three purchase certificates alleged to
have been issued by the Land Tribunal respectively in favour of the three plaintiffs in three suits and the decree thereof were brought under challenge before the First Appellate Court mainly on the reason that there are some overlapping with respect to the extent of property covered by the purchase certificates and its boundaries were not fixed based on the document of title and the survey records. As such, the report of the Survey Commissioner was remitted back by the First Appellate Court for the purpose of enabling the court below to locate the property based on the document of title and survey records. That order of remand is under challenge by the plaintiff in O.S.No.395/1997, who is the first defendant and defendant in O.S.Nos.494/1997 and 438/2003 respectively. In the trial court, a survey commission was issued. But, the properties were not located based on the survey records and the
FAO Nos.121, 122 & 123 of 2013
7
respective purchase certificates. Hence, the First
Appellate Court directed the trial court to remit back the report already submitted. This Court in Francis Assissi v.
Sr. Breesiya [2017 (1) KLT 1041] had laid down the legal
position that there is no scope for remitting the Commissioner's report, but a second commission is
permissible when the earlier Commissioner's report found to be not sufficient to resolve the dispute involved and hence a fresh Commission can be issued. Since it is pertaining
to adjoining properties originally owned by an association given under kudikidappu to various persons including the respective plaintiffs herein, the extent of property given under the certificates has to be located in reference to the document of title, the respective purchase certificates
and the survey records. Hence, the order of remand requires no interference by this court. It is made clear that there will be an open remand to the trial court to address all the issues involved in the suit including the location and fixation of the boundaries, for which the
parties may be permitted to amend their respective plaints and the reliefs sought therein, if so required and to
FAO Nos.121, 122 & 123 of 2013 8
dispose of the matter within a time schedule of nine months
from the date of appearance of the parties. The parties shall appear before the trial court on 22.10.2021.
All the appeals are dismissed accordingly. No costs.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
2 issues framed by the court
Whether the First Appellate Court's order remitting the Survey Commissioner's report for fresh location of property was maintainable.
Whether the High Court should interfere with the trial court's open remand to fix boundaries of adjoining properties.
Colour shows how this judgement treated each authority
Francis Assissi v. Sr. Breesiya [2017 (1) KLT 1041]Explained¶78
T.P. Premsagar
T.P. Subhashini
T.R. Sabu
The Manager, Canara Bank Golden Jubilee Staff Welfare Fund, Cochin-2
The Manager, Canara Bank, Cochin-2
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
