Allowed

D.Subash v. K.S.George

Kerala HC15 Mar 2023RFA/45/2015

Case brief

AI extract

What is this about?

The Kerala High Court allowed the first appeal and set aside the trial court's decree in a suit for recovery of possession. The High Court held that the trial court erred by accepting an unverified survey plan and by failing to ensure the plaintiff proved the balance extent of property after prior sales. The suit was remanded and dismissed.

What did the court decide?

The decree and judgment of the trial court are set aside; the suit is dismissed. Additional respondent is impleaded.

D.Subash Vs K.S.George — Partition | Kerala HC (2023)

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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 15^th DAY OF MARCH 2023 / 24TH PHALGUNA, 1944

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RFA NO. 45 OF 2015 (E)

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AGAINST THE JUDGMENT & DECREE DATED 30.08.2014 IN OS No.339/2012 OF SUB COURT, PALA

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APPELLANT/DEFENDANT:

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D.SUBASH, AGED 57 YEARS, S/o DEVASIA, PARAMBIL (H), KIZHATHADIYOOR KARA, LALAM VILLAGE, MEENACHIL TALUK. BY ADVS. SRI.DINNY THOMAS SRI.JAISHANKAR V.NAIR

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RESPONDENT/PLAINTIFF:

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1 K.S.GEORGE, AGED 70 YEARS, S/o DEVASIA, KAPPIPARAMBIL (H), KIZHATHADIYOOR KARA, LALAM VILLAGE, MEENACHIL TALUK-686 577.

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ADDL.R2 P.J.JAMES, AGED 59, S/o JOSEPH, PERUMBALLIL HOUSE, KIZHATHADIYOOR KARA, PALA POST, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT – 686 575

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(ADDITIONAL R2 IMPLEADED VIDE ORDER DATED 15.03.2023 IN IA 1/2023)

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BY ADV SRI.JOSEPH T.JOHN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA No.45 of 2015 & I.A.No.1 of 2023

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JUDGMENT

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The defendant came up in appeal aggrieved by the

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decree granted by the trial court for recovery of a small piece of land having an extent of 78 sq.mts. by accepting a plan prepared by the Survey Commissioner, exhibited as C1. It is a suit for recovery of possession. There is only one schedule in the plaint, ie. 78 sq.mts. of property alleged to have been obtained under Exts.A1 to A3 documents. The total extent of property obtained comes to 7.28 Ares. The said property is not specifically scheduled in the plaint. It is alleged by the plaintiff that out of the 7.28 Ares, certain portions of property were sold to different persons under different alienation. Those documents or the certified copy of the same were not produced in the suit in order to show the extent of property already sold and the balance extent available with the plaintiff at the time when the suit was filed. In fact, no document is produced to show that the plaintiff was holding an extent of 78 sq.mts. out of 7.28 Ares, after the sale of various portions without

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RFA No.45 of 2015 & I.A.No.1 of 2023

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which a suit was filed for recovery of possession, that too without any substantial prayer. The Commissioner appointed in the case went to the property and had drawn a plot of two cents equivalent to 78 sq.mts. In fact, in

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the resurvey plan, no such property or division was

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available. Even no division was made as that of the property of the defendant or plaintiff based on the earlier document of title. The properties were not

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located based on the earlier document of title, Exts.A1 to A3. What is stated in the earlier document of title is the old survey number, based on which no property was located. The Surveyor has committed a grave mistake by drawing a plot of two cents out of the large extent with two red lines, that too without any basis as to its location, measurement and survey records. No explanation was forwarded by the Survey Commissioner as to on what

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basis such red lines were drawn so as to locate an extent

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of 78 sq.mts. of property. In fact, the plaintiff has

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not produced the document of title with respect to the balance extent available after the sales. Further, the properties were not located based on the documents of

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RFA No.45 of 2015 & I.A.No.1 of 2023

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title, Exts.A1 to A3. Even the suit filed claiming an extent of 78 sq.mts. of property cannot be sustained, unless the plaintiff has proved the extent of property sold out of the large extent of property. The absence of a substantial prayer in the suit further weakens the case of the plaintiff. All these settled principles have been overlooked by the trial court and granted a decree simply accepting the plan prepared by the Commissioner, that too without verifying whether it is in accordance with the document of title or the survey relied on the document of title. The suit ought to have been dismissed by the trial court and as such I have no hesitation to set aside the decree and judgment of the trial court. Hence, the decree and judgment of the trial court will stand set aside and the suit will stand dismissed. Considering the nature of dispute, both the parties are directed to suffer their respective cost of suit as well as the appeal.

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Yet another reason is also available to non suit the plaintiff that during the pendency of this appeal, he had parted with the plaint schedule property to a stranger, who, in turn, filed an application in I.A.No.1/2023 to

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RFA No.45 of 2015 & I.A.No.1 of 2023

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implead himself as an additional respondent. Hence, I.A.No.1/2023 will stand allowed. The Registry shall

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carryout the impleadment.

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Appeal is allowed accordingly.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

RFA No.45 of 2015 & I.A.No.1 of 2023

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APPENDIX OF RFA 45/2015

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RESPONDENT'S ANNEXURES

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ANNEXURE-I A TRUE COPY OF THE DEED NO.1922/2020 IN MEENACHIL SRO DATED 18-12-2020 ANNEXURE-II A TRUE COPY OF THE RECEIPT DATED 11-11-2022

D.Subash v. K.S.George

Case brief

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D.Subash v. K.S.George

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