Allowed

P.Chandran v. Kumari

Kerala HC13 Jul 2022FAO (RO)/15/2022

Case brief

AI extract

What is this about?

The High Court of Kerala allowed appeals challenging a remand order in a partition suit. The court set aside the trial court's decree regarding properties in Sy.No. 2350, directing remand to adjudicate the inclusion of Sub-division No. 71 and obtain survey plans, before dismissing the appeals.

What did the court decide?

Trial court directed to remand the matter to adjudicate the issue regarding Sub-division No. 71 and issue directions for survey plans.

P.Chandran Vs Kumari — Partition | Kerala HC (2022)

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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 13^th DAY OF JULY 2022 / 22ND ASHADHA, 1944

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FAO (RO) NO. 13 OF 2022

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AGAINST THE JUDGMENT & DECREE DATED 18.07.2019 IN OS 22/1998 OF

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PRINCIPAL SUB COURT, THIRUVANANTHAPURAM

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JUDGMENT DATED 07.04.2022 IN AS No.122/2019 OF I ADDITIONAL DISTRICT

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COURT, THIRUVANANTHAPURAM

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APPELLANT IN FAO (RO)/RESPONDENT IN A.S/DEFENDANT IN O.S:

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P.CHANDRAN, AGED 56 YEARS,

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S/o PONNU REDDIAR, T.C.NO.38/211, HOTEL AARTHI, CHOORAKKATTUPALAYAM, NOW RESIDING AT T.C.38/423, ARATHI BHAVAN, CHOORAKKATTUPALAYAM, CHENTHITTA, CHALA P.O., THIRUVANANTHAPURAM,PIN-695 036

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BY ADVS. P.B.SUBRAMANYAN

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SABU GEORGE P.B.KRISHNAN MANU VYASAN PETER

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RESPONDENTS IN FAO(RO)/APPELLANTS IN A.S./PLAINTIFFS 2 & 4-9 IN O.S:

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1 PADMAVATHI @ PADMINI, AGED ABOUT 67 YEARS, D/o GURU AMMAL, T.C.38/265, CHENTHITTA, THIRUVANANTHAPURAM,PIN-695 036

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2 KUMARI, AGED ABOUT 57 YEARS, D/o MUTHUKRISHNA REDIIAR, T.C.24/1031, W & C HPH ROAD, THIRUVANANTHAPURAM, PIN-695 014

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3 SUDHA, AGED 54 YEARS, D/o LATE MUTHUKRISHNA REDDIAR, T.C.23/834, VALIASALA, THIRUVANANTHAPURAM,PIN-695 036

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4 SATHEESH KUMAR, S/o LATE MUTHUKRISHNA REDDIAR, AGED ABOUT 49 YEARS, T.C.38/266, CHENTHITTA, CHALA P.O., THIRUVANANTHAPURAM,PIN-695036.

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5 DHANALEKSHMI @ PRIYA, W/o LATE SUBHASH, AGED ABOUT 48 YEARS, T.C.38/266, CHENTHITTA, CHALA P.O.,THIRUVANANTHAPURAM,PIN-695036.

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FAO (RO) Nos.13 & 15 of 2022

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6 SANJANA S., D/o DHANALEKSHMI, AGED ABOUT 24 YEARS, T.C.38/266, CHENTHITTA, CHALA P.O., THIRUVANANTHAPURAM,PIN-695036.

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7 NEETHUKRISHNA, D/o DHANALEKSHMI, AGED ABOUT 20 YEARS, T.C.38/266, CHENTHITTA, CHALA P.O., THIRUVANANTHAPURAM, PIN-695036.

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R1 TO R7 BY ADVS. L.MOHANAN

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LIGEY ANTONY

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 13.07.2022, ALONG WITH FAO (RO).15/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) Nos.13 & 15 of 2022

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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 13^th DAY OF JULY 2022 / 22ND ASHADHA, 1944

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FAO (RO) NO. 15 OF 2022

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AGAINST THE JUDGMENT & DECREE DATED 18.07.2019 IN OS No.73/2001 OF

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PRINCIPAL SUB COURT, THIRUVANANTHAPURAM

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JUDGMENT DATED 07.04.2022 IN AS No.123/2019 OF I ADDITIONAL DISTRICT

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COURT, THIRUVANANTHAPURAM

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APPELLANT IN FAO (RO)/RESPONDENT IN A.S./PLAINTIFF IN O.S:

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P.CHANDRAN, AGED 56 YEARS,

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S/o PONNU REDDIAR, T.C.NO.38/211, HOTEL AARTHI, CHOORAKKATTUPALAYAM, NOW RESIDING AT T.C.38/423, ARATHI BHAVAN, CHOORAKKATTUPALAYAM, CHENTHITTA, CHALA P.O., THIRUVANANTHAPURAM,PIN-695 036

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BY ADVS. P.B.KRISHNAN

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P.B.SUBRAMANYAN

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MANU VYASAN PETER

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RESPONDENTS IN FAO (RO)/APPELLANTS IN A.S/DEFENDANTS 3 TO 8 IN O.S:

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1 KUMARI, AGED ABOUT 57 YEARS, D/o MUTHUKRISHNA REDIIAR, T.C.24/1031, W & C HPH ROAD, THIRUVANANTHAPURAM, PIN-695 014

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2 SUDHA, AGED 54 YEARS, D/o LATE MUTHUKRISHNA REDDIAR, T.C.23/834, VALIASALA, THIRUVANANTHAPURAM,PIN-695 036

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3 SATHEESH KUMAR, S/o LATE MUTHUKRISHNA REDDIAR, AGED ABOUT 49 YEARS, T.C.38/266, CHENTHITTA, CHALA P.O., THIRUVANANTHAPURAM,PIN-695036.

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FAO (RO) Nos.13 & 15 of 2022

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4 DHANALEKSHMI @ PRIYA, W/o LATE SUBHASH, AGED ABOUT 48 YEARS, T.C.38/266, CHENTHITTA, CHALA P.O.,THIRUVANANTHAPURAM,PIN-695036.

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5 SANJANA S., D/o DHANALEKSHMI, AGED ABOUT 24 YEARS, T.C.38/266, CHENTHITTA, CHALA P.O., THIRUVANANTHAPURAM,PIN-695036.

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6 NEETHUKRISHNA, D/o DHANALEKSHMI, AGED ABOUT 20 YEARS, T.C.38/266, CHENTHITTA, CHALA P.O., THIRUVANANTHAPURAM, PIN-695036.

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R1 TO R6 BY ADVS. L.MOHANAN LIGEY ANTONY

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 13.07.2022, ALONG WITH FAO (RO).13/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) Nos.13 & 15 of 2022

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JUDGMENT

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Against the order of remand by the first appellate

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court by setting aside the decree and judgment of the trial

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court, the plaintiff in O.S.No.73/2001, who is the

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defendant in the connected suit came up in appeal. The dispute is pertaining to 2 sets of properties i.e. an extent of 12.890 cents in Sy.No.2350/67 purchased by the father of first plaintiff one Subbarayalu Reddiar from one Padmanabha Rao under Ext.A1 sale deed and another three cents of property in Sy.No.2350/71, which is under attachment in a money suit – O.S.No.607/1112ME of Principal Munsiff Court, Thiruvananthapuram, wherein it was purchased by the decree holder Venkulekshmi Ammal in execution. It is thereafter, Ext.B1 compromise was entered into in another suit with respect to the right, title and interest over the properties including the abovesaid properties. The Commissioner who visited the property has located

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FAO (RO) Nos.13 & 15 of 2022

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property comprised in Sy.No.2350/67 strictly in accordance

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with Ext.B1 compromise and the plan annexed to it. It was challenged by the plaintiff on the ground that the properties comprised in Sub-Division No.67 & 71 out of Sy.No.2350 were not separately located by the Advocate Commissioner. It was really not even identified. But the trial court, instead of appreciating the objection raised by the plaintiff regarding the preparation of a plan of the property, that too, without identifying the property comprised in sub-division No.71 out of Sy.No.2350, had taken into consideration some extraneous grounds and

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granted a decree by allotting plot with identification A B C D M L K G H I J A to the share of plaintiff under subdivision No.67 out of Sy.No.2350 strictly in accordance with Ext.B1 compromise and the plan annexed to it. In fact, there is a failure on the part of the trial court to take into consideration the property which would fall under sub-

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division No.71 out of Sy.No.2350/67. Even going by Ext.B1 agreement, what is included is the property comprised in

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FAO (RO) Nos.13 & 15 of 2022

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sub-division No.67 of Sy.No.2350 and not the sub-division

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No. 71. Hence, the decree passed in O.S.No.73/2001 is silent with respect to the property in sub-division No.71 and as such, the decree granted by the trial court cannot

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be sustained in so far as the property comprised in Sy.No.2350/71 is concerned. If that property is also included in Ext.B1, certainly it would have reflected in the plan prepared by the Commissioner strictly in

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accordance with Ext.B1. But going by Ext.B1 and the present plan, it can be seen that no portion of property in subdivision No.71 is included. But the question is left open for adjudication by the trial court. Hence, while

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confirming the order of remand, the trial court is directed to adjudicate the said issue, for which, the parties shall

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appear before the trial court on 09/08/2022.

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The trial court shall issue direction to the survey authorities to produce the sub-division plan and survey

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plan so as to ascertain the alignment of sub-division No.67

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FAO (RO) Nos.13 & 15 of 2022

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and 71 in Sy.No.2350. In the event of non-production of those documents, coercive steps shall be taken against the concerned officials.

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Both the appeals are dismissed with the abovesaid direction.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

P.Chandran v. Kumari

Case brief

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P.Chandran v. Kumari

Case brief

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