Partly allowed

M.a.Babu v. Parvathy

Kerala HC7 Oct 2021FAO (RO)/25/2021

Case brief

AI extract

What is this about?

The single judge dismissed the appeal against a remand order in a property suit. The court held that when title is contested, the plaintiff must establish title and cannot avoid a declaration suit via laches, but directed the lower court to permit pleadings amendment.

What did the court decide?

The appeal is dismissed with a direction to the trial court to permit both parties to amend their pleadings and reliefs; the trial court shall re-hear the matter.

M.a.Babu Vs Parvathy — 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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THURSDAY, THE 7^TH DAY OF OCTOBER 2021 / 15TH ASWINA, 1943

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FAO (RO) NO. 25 OF 2021

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AGAINST THE JUDGMENT AND DECREE DATED 09/02/2021 IN AS 14/2019 OF SUB COURT, SULTHAN BATHERY, WAYANAD

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AGAINST THE JUDGMENT AND DECREE DATED 30.11.2018 IN OS 233/2017 OF

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MUNSIFF COURT, KALPETTA

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APPELLANT/RESPONDENT/PLAINTIFF:

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M.A.BABU, AGED 48 YEARS, S/O.MANIYAN, KSRTC DRIVER, RESIDIING AT MUNDERIPOYIL, MANIYANGODE POST,KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.

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BY ADVS. T.K.SANDEEP ARJUN SREEDHAR ARUN KRISHNA DHAN ALEX ABRAHAM

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RESPONDENTS/APPELLANTS/DEFENDANTS:

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1 PARVATHY, AGED 52 YEARS, W/O.SREEDHARAN, RESIDIING AT MUNDERIPOYIL, MANIYANGODE POST,KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT-673 576.

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2 SREEJI @ CHERIYA CHATHI, AGED 57 YEARS, S/O.CHATHI, RESIDIING AT MUNDERIPOYIL, MANIYANGODE POST,KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT-673 576.

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3 VERAN, S/O.CHUNDA, RESIDIING AT MUNDERIPOYIL, MANIYANGODE POST,KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT-673 576.

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BY ADVS. K.K.PREETHA R.K.PRASANTH

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP

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FOR ADMISSION ON 07.10.2021, THE COURT ON THE SAME DAY DELIVERED

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THE FOLLOWING:

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FAO (RO) NO. 25 OF 2021 2

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JUDGMENT

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Whether a mere injunction suit without

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substantial prayer when title is under dispute be maintainable and whether an injunction against trespass to the adjacent owner can be issued in the absence of an actual boundary line separating the

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properties are the questions came up for consideration.

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It is based on Ext.A1 purchase certificate and

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release of fractional right by the sister and mother, the plaintiff claims title over the property and maintained a mere injunction suit against trespass to the adjoining property owner. It was decreed by the trial court without satisfying any actual boundary line or boundary mark translated into the property. It was set aside by the first appellate court and

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passed an order of remand. It is submitted that the order of remand is not warranted and it is not at all

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necessary to ask for substantial relief of

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declaration of title merely on the dispute raised by

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FAO (RO) NO. 25 OF 2021 3

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the defendants without any basis. When title is under challenge, the plaintiff is bound to establish his title, for which a suit for declaration cannot be avoided. The plaintiff cannot take the benefit of laches on the part of defendant in disproving the title of plaintiff. In fact, the mandate lies on the

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plaintiff and not on the defendant. Hence, the order

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of remand deserves no interference. But there will

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be a direction to the trial court to permit both the parties to amend their pleadings and reliefs. The parties shall appear before the trial court on 20/10/2021.

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The appeal is dismissed with the abovesaid

directions.

Sd/-

P.SOMARAJAN

JUDGE

msp

M.a.Babu v. Parvathy

Case brief

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M.a.Babu v. Parvathy

Case brief

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