Dismissed

T.P.Premsagar v. T.P.Subhashini

Kerala HC4 Oct 2021FAO/122/2013

Case brief

AI extract

What is this about?

This judgment consolidates three appeals against orders remitting a survey commissioner's report to the trial court for re-location of property boundaries. The Court held that despite the general rule against remitting such reports, a fresh commission is necessary for adjoining properties to fix boundaries based on title documents. All appeals were dismissed, directing the matter to be disposed of

What did the court decide?

All appeals dismissed. Open remand to trial court to locate property and fix boundaries within nine months.

T.P.Premsagar Vs T.P.Subhashini — Partition | Kerala HC (2021)

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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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MONDAY, THE 4^th DAY OF OCTOBER 2021 / 12TH ASWINA, 1943

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FAO NO. 121 OF 2013

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AGAINST THE COMMON JUDGMENT DATED 31.01.2013 IN AS No.30/2008 OF SUB

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COURT, KOCHI, ERNAKULAM

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COMMON JUDGMENT DATED 28.02.2008 IN O.S.No. 395/1997 OF MUNSIFF

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COURT, KOCHI

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APPELLANT/1st RESPONDENT/PLAINTIFF:

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T.P.PREMSAGAR, S/o LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29.

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BY ADVS. SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR

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SMT.N.V.SANDHYA

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RESPONDENTS/APPELLANTS 1 TO 5/DEFENDANTS 1 TO 5/2nd RESPONDENT/6 th

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DEFENDANT:

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1 T.P.SUBHASHINI, W/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29.

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2 P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29.

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3 T.R.SABU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29.

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4 T.R.SANU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29.

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5 T.R.SAJU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29.

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FAO Nos.121, 122 & 123 of 2013

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6 K.R.RAJEEVAN, S/o RAVINDRAN, KALLIKUDAYIL HOUSE, PULLAR DESOM ROAD, PALLURUTHY, KOCHI -6.

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R1-R5 BY ADV SMT.P.R.REENA

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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:

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FAO Nos.121, 122 & 123 of 2013

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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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MONDAY, THE 4^th DAY OF OCTOBER 2021 / 12TH ASWINA, 1943

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FAO NO. 122 OF 2013

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AGAINST THE COMMON JUDGMENT DATED 31.01.2013 IN AS No.63/2008 OF SUB

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COURT, KOCHI, ERNAKULAM

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COMMON JUDGMENT DATED 28.02.2008 IN OS No.494/1997 OF MUNSIFF COURT,

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KOCHI

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APPELLANT/1st RESPONDENT/1 st DEFENDANT:

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T.P.PREMSAGAR, S/o LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29.

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BY ADVS. SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR

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SMT.N.V.SANDHYA

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RESPONDENTS/APPELLANTS/PLAINTIFFS 1 AND 3/RESPONDENTS 2 AND

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3/DEFENDANTS 2 AND 3:

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1 T.P.SUBHASHINI, W/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29.

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2 T.R.SABU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29.

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3 THE MANAGER, CANARA BANK GOLDEN JUBILEE STAFF WELFARE FUND, COCHIN-2.

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4 THE MANAGER, CANARA BANK, COCHIN-2.

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FAO Nos.121, 122 & 123 of 2013

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R1 & R2 BY ADVS.SMT.P.R.REENA SRI.RENJITH THAMPAN SR.

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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:

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FAO Nos.121, 122 & 123 of 2013

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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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MONDAY, THE 4^th DAY OF OCTOBER 2021 / 12TH ASWINA, 1943

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FAO NO. 123 OF 2013

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AGAINST THE COMMON JUDGMENT DATED 31.01.2013 IN AS No. 64/2008 OF

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SUB COURT, KOCHI, ERNAKULAM

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COMMON JUDGMENT DATED 28.02.2008 IN O.S.No.438/2003 OF MUNSIFF COURT,

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KOCHI

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APPELLANT/RESPONDENT/DEFENDANT:

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T.P.PREMSAGAR, S/o LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29.

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BY ADVS. SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR SMT.N.V.SANDHYA

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RESPONDENT/APPELLANT/ADDITIONAL PLAINTIFF No.2:

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T.R.SABU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29.

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BY ADVS. SMT.P.R.REENA SRI.RENJITH THAMPAN SR.

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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:

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FAO Nos.121, 122 & 123 of 2013

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COMMON JUDGMENT

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Based on the three purchase certificates alleged to

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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

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FAO Nos.121, 122 & 123 of 2013

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respective purchase certificates. Hence, the First

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Appellate Court directed the trial court to remit back the report already submitted. This Court in Francis Assissi v.

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Sr. Breesiya [2017 (1) KLT 1041] had laid down the legal

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position that there is no scope for remitting the Commissioner's report, but a second commission is

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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

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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

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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

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parties may be permitted to amend their respective plaints and the reliefs sought therein, if so required and to

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FAO Nos.121, 122 & 123 of 2013 8

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dispose of the matter within a time schedule of nine months

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from the date of appearance of the parties. The parties shall appear before the trial court on 22.10.2021.

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All the appeals are dismissed accordingly. No costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

T.P.Premsagar v. T.P.Subhashini

Case brief

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T.P.Premsagar v. T.P.Subhashini

Case brief

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