The High Court of Kerala allowed the appeal against the dismissal of a suit for fixation of boundary. The Court held that dismissal is impermissible due to a Survey Commission's failure to locate the property when title documents were admitted. Consequently, the appeal was dismissed as the First Appellate Court's remand was appropriate.
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
FRIDAY, THE 3rd DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
FAO (RO) NO. 4 OF 2020
AGAINST THE JUDGMENT & DECREE DATED 30.09.2019 IN AS No.9/2018 OF SUB COURT, KOYILANDY, KOZHIKODE
JUDGMENT AND DECREE DATED 21.12.2017 IN O.S.No.157/2007 OF MUNSIFF
COURT, PERAMBRA
APPELLANTS/RESPONDENTS/DEFENDANTS:
BY ADVS. K.P.SUDHEER
J.RAMKUMAR
RESPONDENT/APPELLANT/PLAINTIFF:
JERARDH, AGED 53 YEARS, S/o MANUVEL, OONATTU HOUSE, THIRUVAMBADI AMSOM DESOM, KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER P.T. GEORGE S/o THOMAS, AGED 70 YEARS, PANAMATTATHIL HOUSE, CHEVAYUR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT 673 017.
BY ADVS. SRI.R.SUDHISH SMT.M.MANJU
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
F.A.O. (RO) No.4 of 2020
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JUDGMENT
The judgment of remand of the First Appellate Court in
a suit for fixation of boundary is brought under challenge by the defendants. The suit was dismissed on the ground that the property of the plaintiff was not identified properly and there is no prayer in the suit for recovery of portion of property in the possession of defendants. The Survey Commission issued to measure out the respective properties based on the title deeds has failed in their duty and the plan was prepared without showing the boundaries. In a suit for fixation of boundary, it is not permissible to dismiss the same, unless sufficient opportunity was given to the plaintiff to identify and locate the property through a Survey Commission. In the instant case, the plaintiff took pain to issue a Survey Commission and the default, if any, committed by such commission, shall not be placed on the shoulder of plaintiff so as to dismiss the suit. It is not advisable to dismiss such a suit simply on the failure on the part of Survey Commission to locate the property, especially when
the document of title was produced and admitted in
F.A.O. (RO) No.4 of 2020
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evidence. Hence, the dismissal of the suit by the trial court on the said ground cannot be sustained.
produced and admitted in evidence. The dispute is
pertaining to two different adjoining properties lying without any boundaries belonging to the plaintiff and the defendants respectively, and as such, the non mentioning of survey number in the tax receipt may not be a sufficient ground to reject the title obtained under the document of title. All these grounds were taken together by the first appellate court and remanded the matter so as to afford an opportunity to the parties to rectify the mistake crept in the plan by issuing a survey commission once again. Hence, the appeal fails, dismissed. No costs.
Sd/-
P.SOMARAJAN JUDGE
DMR/-
3 issues framed by the court
Whether the dismissal of a suit for fixation of boundary is sustainable due to failure of the Survey Commission to properly identify the property.
Whether the absence of survey number in tax receipts constitutes a ground to reject title documents produced in evidence.
Whether the First Appellate Court correctly remanded the matter for a re-issued survey commission to rectify errors in the plan.
KALLARAKETTIL BASHEER
KANIKULANGARA SAREENA
JERARDH
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
