Allowed

Leelamma v. Ponnamma Thomas

Kerala HC20 Jul 2022FAO (RO)/44/2020

Case brief

AI extract

What is this about?

This judgment allows an appeal against a remand order in a boundary and injunction suit. The High Court held that since there was no new construction by plaintiffs to show possession beyond their sale deed portions and no dispute on western/southern boundaries, recovery of possession and impleading boundary owners were unnecessary. The order of remand is set aside in light of settled jurisdictiona

What did the court decide?

Order of remand set aside; appeal allowed; parties to appear before first appellate court on 10.08.2022.

Leelamma Vs Ponnamma Thomas — Landlord and Tenant | 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 20TH DAY OF JULY 2022 / 29TH ASHADHA, 1944

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FAO (RO) NO. 44 OF 2020

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AGAINST THE JUDGMENT DATED 31.01.2017 IN OS 217/2010 OF MUNSIFF
COURT,ADOOR

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AS 33/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV,
PATHANAMTHITTA DATED 30.09.2020

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ADDRESS OF THE APPELLANTS/RESPONDENTS/DEFENDANTS:

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1LEELAMMA
AGED 47 YEARS
W/O.THANKACHAN K.J.,
THEVARUKIZHAKKETHIL,
EDAPPURAYIL,
KURAMPALA MURI,
KURAMPALA VILLAGE,
ADOOR TALUK,
PATHANAMTHITTA DISTRICT.

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2THANKACHAN K.J.
AGED 49 YEARS
S/O.JOY,
THEVARUKIZHAKKETHIL,
EDAPPURA,
KURAMPALA MURIL,
KURAMPALA VILLAGE,
ADOOR TALUK,
PATHANAMTHITTA DISTRICT.

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BY ADV SHIJU VARGHESE

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ADDRESS OF THE RESPONDENTS/APPELLANTS/PLAINTIFFS:

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1PONNAMMA THOMAS
AGED 58 YEARS
W/O.THOMAS,
RODIL THEKKETHIL HOUSE,
KURAMPALA MURI,
KURAMPALA VILLAGE,
ADOOR TALUK,
PATHANAMTHITTA DISTRICT.

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FAO (RO) NO. 44 OF 2020

¶15

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2THOMAS K.
AGED 58 YEARS
S/O.KUNJAPPY,
RODIL THEKKETHIL HOUSE,
KURAMPALA MURI,
KURAMPALA VILLAGE,
ADOOR TALUK,
PATHANAMTHITTA DISTRICT.

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BY ADVS.
D.KISHORE
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
ARYA JOSEPH

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
COME UP FOR HEARING ON 20.07.2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

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FAO (RO) NO. 44 OF 2020

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JUDGMENT

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It is against the order of remand, the

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defendants came up in appeal. A suit for fixation
of boundary and injunction was dismissed by the
trial court. The first appellate court set aside
the same and ordered remand for the purpose of
incorporation of recovery of possession based on

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title. In fact, the property involved
originally belonged to the common ancestors,
from whom both the plaintiffs and the defendants
purchased their respective properties. The
properties were lying without any boundary. As
such, the suit was filed for fixation of boundary.
There is a building situated in the property and
the respective portion of building abetting into
the property of plaintiffs and defendants was

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also given under sale deed. But there is no
demarcating boundary. Admittedly, none of the

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FAO (RO) NO. 44 OF 2020

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plaintiffs made any new construction over the
property so as to show possession of any other
portion of property than the one covered by the
respective sale deed. As such, there is no
necessity for incorporating a prayer for
recovery of possession. Earlier, there was a
suit for declaration of possessory right over
the property by the defendants, which has ended
in dismissal and became final and conclusive. As

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such, the order of remand for the said purpose
cannot be sustained. The Commissioner who
visited the property did not see any boundary
line or boundary mark or act of possession over
the property of other or any portion thereof.
With respect to western and southern boundaries,

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there is no dispute at all and as such, the
remand for the purpose of impleading the owners
of western and southern boundaries also cannot
be sustained. The report submitted by the

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FAO (RO) NO. 44 OF 2020

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Commissioner fixing the boundary was not properly

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taken up by the first appellate court. The legal
position regarding jurisdiction of the first
appellate court has been settled by this court
in Gopalakrishnan and Another v. Ponnappan and
others [2021 (5) KHC 548] followed by the
decision of the Apex Court in Bhairab Chandra

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Nandan v. Ranadhir Chandra Dutta (1988 KHC 883).
Hence, the order of remand will stand set aside.
The parties shall appear before the first
appellate court on 10/08/2022 to proceed further
with the matter.

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The appeal will stand allowed accordingly.

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No costs.

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Sd/-

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P.SOMARAJAN
JUDGE

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SPV

Leelamma v. Ponnamma Thomas

Case brief

What is this about?

What did the court decide?

Leelamma v. Ponnamma Thomas

Case brief

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What did the court decide?

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