Partly allowed

Swayam Prabha v. I.A. Thoshiba

Kerala HC5 Apr 2022FAO (RO)/201/2017

Case brief

AI extract

What is this about?

The court modified a remand order sent to the trial court in a boundary dispute suit. It rejected strict adherence to an unsuitable survey plan, directed a fresh commission using title documents, set aside cost orders, and allowed the appeal in part, granting a timeline for resolution.

What did the court decide?

Order of remand modified to direct trial court to issue fresh commission for locating properties using title documents; cost order set aside; appeal allowed in part.

Swayam Prabha Vs I.A. Thoshiba — Property and Title | 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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TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944

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FAO (RO) NO. 201 OF 2017

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AGAINST THE JUDGMENT AND DECREE DATED 07.10.2017 IN AS 382/2016 OF
II ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM

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OS 478/2008 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM

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APPELLANT/RESPONDENT/PLAINTIFF:

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SWAYAM PRABHA D/O. LEKSHMIKUTTY. V.H 90, T.C IV/2212, KURAVENKONAM,KOWDIAR, THIRUVANANTHAPURAM.

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BY ADV SRI.T.M.ABDUL LATHEEF

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RESPONDENT/APPELLANT/ADDL. 2ND RESPONDENT:

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I.A. THOSHIBA

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AGED 42 YEARS, D/O. INDULEKHA,
MEDAYIL VEEDU,
T.C 3/2657, MARAPPALAM, PATTOM,
THIRUVANANTHAPURAM - 695 004.

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BY ADV SRI.T.K.ANANDA KRISHNAN

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP
FOR HEARING ON 05.04.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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FAO (RO) NO. 201 OF 2017

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JUDGMENT

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An order of remand was passed by the first
appellate court mainly on the ground that the
acquisition plan with respect to the portion of
property acquired from the plaintiff and the
defendant was not produced so as to ascertain
the extent of property left out and on that
ground, Ext.C1(a) plan was not accepted. Hence,
the decree and judgment of the trial court
fixing the boundary under Ext.C1(a) plan was set
aside by the first appellate court. Against the
said order of remand, the plaintiff came up in
appeal.

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2. The boundary sought to be ascertained and
fixed is between 'A' schedule belonged to the
plaintiff and 'B' schedule belonged to the
defendant, who obtained the property under a
partition, in which both of them were allotted
with 6.14 cents of property each. It is out of

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FAO (RO) NO. 201 OF 2017

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that property, an extent of 1.30 Ares was
acquired by the government from the property of
the defendant and 0.10 Ares from the property of
the plaintiff. A strange argument was also
advanced by the counsel for the appellant that
after acquisition, no property was left out as
that of the plaintiff. But no such contention
was raised in the trial court.

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3. Even the plaintiff had objected the

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acceptance of Ext.C1(a) plan as there are
mistake in the measurement given in that plan.
It is not clear whether it is in accordance with
the survey record and the acquisition plan, if
any. The first appellate court by relying on
the decision rendered by a Division Bench of
this Court in Francis Assissi v. Sr.Breesiya
(2017 (1) KLT 1041), directed the trial court

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to dispose of the suit afresh by issuing a fresh
commission for demarcation and identification of
the properties, but there is a further direction
to frame an additional issue as to whether there

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FAO (RO) NO. 201 OF 2017

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exists any boundary wall or remnants of any old
boundary wall separating the properties. There
is a total failure on the part of the first
appellate court to appreciate the dispute
involved in the suit pertaining to fixation of
boundary separating the properties. The
commissioner who prepared Ext.C1(a) plan and
report was examined. He did not see any
separating boundary in existence at the time of
his visit. A suggestion put up by the counsel
for the plaintiff during the cross examination
of the defendant regarding a temporary structure
made was taken as an indirect admission
regarding existence of a boundary overlooking
all settled principles. When there is no case
of adverse possession of any portion of property
held by either of the parties, it is not at all
necessary to go into that question.

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4. Yet another mistake was also committed by

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the appellate court by imposing a cost of
Rs.2,000/- to the appellant for not pursuing a

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FAO (RO) NO. 201 OF 2017

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petition to set aside the commission report in
I.A.No.4598/2013. It is against all the settled
principles. Further, a Division Bench of this
court in the abovesaid case laid down the legal
position that there is no scope for setting
aside a report submitted under Order XXVI Rule 1
to 13 C.P.C. It is after taking note of the
said legal position, a cost of Rs.2,000/- was
ordered to the appellant. It is really
unwarranted. Further, the first appellate court
ought not to have ordered cost on account of not
pursuing an application for setting aside the
commission report, especially in view of the
legal position settled by this court as above.
Hence, the order of remand requires modification
to the extent that the trial court shall issue a
fresh commission for the purpose of locating
both the properties and the dividing line
thereof, for which the survey plan, document of
title can be relied on. If the acquisition plan

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is available, the same can also be produced

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FAO (RO) NO. 201 OF 2017

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either of the parties for the purpose of its
location.

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The appeal is allowed in part. The trail
court shall dispose of the matter within a time
schedule of four months from the date of
appearance of the parties. For that purpose, the
parties shall appear before the trial court on
18.05.2022.

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P.SOMARAJAN JUDGE

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SPV

Swayam Prabha v. I.A. Thoshiba

Case brief

What is this about?

What did the court decide?

Swayam Prabha v. I.A. Thoshiba

Case brief

What is this about?

What did the court decide?

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