Allowed

V.O.Jacob v. Jose

Kerala HC15 Sept 2021FAO (RO)/167/2017

Case brief

AI extract

What is this about?

This judgment deals with an appeal against a remand order in a decades-long property injunction dispute. The court held that while survey commissions are impermissible in pure injunction suits, the delay in litigation justified sustaining the remand but directing the trial court to permit amendments for adjudication on merits within a four-month timeline.

What did the court decide?

Appeal disposed of with direction to allow the trial court to permit amendment of pleadings for substantial prayers and dispose of the matter within four months.

V.O.Jacob Vs Jose — Property and Title | 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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WEDNESDAY, THE 15^TH DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943

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FAO (RO) NO. 167 OF 2017

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AGAINST THE DECREE AND JUDGMENT DATED 07.07.2017 IN AS 7/2012 OF THE SUB COURT, MUVATTUPUZHA, ERNAKULAM

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AGAINST THE DECREE AND JUDGMENT DATED 23.12.2011 IN OS.NO.458/2009 OF MUNSIFF’S COURT, MUVATTUPUZHA

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APPELLANT/RESPONDENT/DEFENDANT:

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V.O.JACOB AGED 68 YEARS, S/O OUSEPH VITHAYATHIL(H), KOZHIPILLY KARA,VARAPPETTY VILLAGE, KOTHAMANGALAM.

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BY ADV SRI.ALEXANDER JOSEPH

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RESPONDENT/APPELLANT/PLAINTIFF:

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JOSE AGED 67 YEARS, S/O.ULAHANNAN, PUTHYATHUMUKALEL HOUSE, KOZHIPPILLY KARA, VARAPETTY VILLAGE,KOTHAMANGALAM.

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BY ADV SRI.BIJU .C. ABRAHAM

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 15.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) NO. 167 OF 2017

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JUDGMENT

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The litigation started in the year 2009

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by way of an injunction suit, which was failed in the first stage, against which an appeal was preferred before the first appellate court, wherein it was set aside and the matter was remanded back to the trial court for issuing a survey commission, which was assailed before this Court by the defendant.

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In a suit for injunction simplicitor, it is not permissible to issue a survey commission for measuring the property or to fix the boundary or to ascertain the boundary. An injunction suit against trespass can be maintained only when there is specific clear boundary between the property of the plaintiff and the defendant. The commissioner who visited the property not reported any

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FAO (RO) NO. 167 OF 2017

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specific clear boundary except a portion of a ’Kayyala’ made up with laterite stone.

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Inter alia, it is contended by the learned counsel for the appellant/defendant that, apart from the ‘B’ schedule property purchased from the younger brother of plaintiff, he had obtained 2 cents of property from the predecessor in interest of the plaintiff, the elder brother. A case of dedication of certain portion also raised. As discussed earlier in a suit for injunction simplicitor, it is not permissible to issue a survey commission. As such the remand order of the first appellate court cannot be sustained.

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But, considering the fact that the

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suit was initiated in the year 2009 and fought up to this Court by taking more than twelve years, it is not fit and proper to

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FAO (RO) NO. 167 OF 2017

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direct the parties to go for another suit with substantial prayers. Hence, I am of

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the view that, both the parties can be permitted to amend their suit and written statement by incorporating substantial prayers so as to adjudicate the dispute involved on merits, for which, the remand of the matter to the trial court can be sustained. Hence, there will a direction to the trial court to allow the plaintiff as well as the defendant to incorporate substantial prayers/ reliefs in the suit and also by way of counter claim and amend their pleadings, if any, and to adduce further evidence in the matter so as to adjudicate the dispute involved in the suit.

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The parties shall appear before the

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trial court on 11.10.2021. There will be a

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further direction to the trial court to

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FAO (RO) NO. 167 OF 2017

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dispose of the matter within a time schedule of four months from the date of appearance of the parties. The respective parties shall amend their pleadings or reliefs in the suit by way of a counter claim within one week from the date of appearance. The parties will be at liberty to file their respective counter pleadings within another one week. In the event of issuance of a survey commission, the same shall be done within two weeks from that day.

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With the above said directions, the appeal will stand disposed of. No costs.

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Sd/-

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P.SOMARAJAN JUDGE

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SPV

V.O.Jacob v. Jose

Case brief

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V.O.Jacob v. Jose

Case brief

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