Disposed

Alexander v. Charly

Kerala HC7 Dec 2023RSA/1022/2015

Case brief

AI extract

What is this about?

The High Court accepted a modified mediation agreement dated 25.8.2023 between appellant Alexander and respondent Charly regarding property boundary and pathway easement disputes. Consequently, the judgment and decree of lower courts were set aside and the second appeals disposed of in terms of the agreement.

What did the court decide?

Impugned judgment and decree set aside; regular second appeals disposed of in terms of the modified mediation agreement dated 25.8.2023.

Alexander Vs Charly — Property and Title | Kerala HC (2023)

¶1

IN TEE Hlcill couRT oF RERAln AT I:mmRI7IAM

¶2

PRESEn"

¶3

TED E[oNouRABId= in. dusTlcE zL. Bat)mRPDEEN

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"t}Rsmr, Tin 7" Dzi:Ir oF I)ECE"BER 2o23 / 16TE AGRAm:I:ENA, 1945

¶5

RSZI NO. 1022 0F 2015

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AGAINST THE -uD@eniT AND DECREE DjLrm 29.5.2ol3 IN ]i.s.No.37/2oi2 oF

¶7

SUB CX~,FK~

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AND ouDemiT AND DECREE Damp 31.3.2ol2 IN o.s.No.184/2oog oF

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pRINclpaL MUNSIFT CouRT, rocHI

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AE}pEI.ILhNT/AppEIIANTroEFENDENT:

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ALEXAVER,

¶12

AGED 72 YEARS

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S/O.RATE MANUEL, PANACHIKKAL HOUSE, CC NO.21/627, PARK ROAD, PERUMBADAPPU, PALLURUTHY

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BY ADV SRI.M.S.UNNIKRISHNAN

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RESPCINDEINT/RESPONDENT/PIAINTIFF:

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C-Y,

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AGED 59 YEARS

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S/O.I-ATE MANUEL, PANACHIKKAL HOUSE, 21/1113, PARK ROAD, PERUMBADAPPU, PALLURUTHY 682006

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BY ADVS.

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SRI.DINESH R.SHENOY SRI . EBIN MATHEW SMT . K . K . Tyor H I I.AKs HMy SRI.SANIL JOSE

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ALONG WITH RSA NO.1023 0F 201.5 0N 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RANOS.1022 6

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1023 0F 2015

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IN TEE E[IGE[ couRT oF RERALA AT EmnRlm»4 Eq-

¶25

TEE I-ABId= in. ousTlc= A. B]DEIARtmEEN

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THURSDz\r, TEE 7" rm:Ir oF DEon®ER 2o23 / 16TH ArfeFLA~,

¶27

1945

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RSA NO. 1023 0F 2015

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AGAINST TEE otD®mur A)o DECREE Dzim 29.5.2ol3 IN A.s.NO.22/2oi2 OF SUB cot",rocHI AID OuDGMENT Ale I]ECREE ENED 31.3.2ol2 IN O.s.NO.i8o/2oog OF MENslFF COORT, rocHI AppELILENT/REsporoENI/pmnurlFT:

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ALEXAVER, AGED 6o yFas S/O.LATE MANUEL, PANACHIKKAL HOUSE, CC NO.21/627, PARK ROAD, PERUMBADAPPU, PALLURUTHY.

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BY ADV SRI.M.S.UNNIKRISHNAN

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RE SEunENT/AppELLZNI/DEFENDANT :

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CHrmY AGED 59 YEus S/O.I-ATE MANUEL, PANACHIKKAL HOUSE, 21/1113, PARK ROAD, PERUMBADAPPU, PALLURUTHY - 682 006

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BY ADVS. SRI.DINESH R.SHENOY SRI . EBIN MATHEW SMT . K . K . -yorH I LAKs HMy SRI.SANIL JOSE

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ALONG WITH RSA NO.1022 0F 2015, ON 07.12.2023, THE COURT 0N THE SAME DAY DELIVERED THE FOLLOWING:

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RSZI NOS.1022 a 1023 0F 2015

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COMMONTUDGMEI`NTIT

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Dated this the 7th day of December, 2023

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These Regular Second Appeals have been filed under Section 100 of the Code of Civil Procedure (for short, 'the C.P.C.' hereinafter), against the common judgment and decree in A.S.Nos.22/2012, 28/2012, 37/2012 and Cross Objection in A.S.No.22/2012, dated 29.5.2013, on the files of the Sub Court, Kochi, arose out of the common judgment and decree in O.S.Nos.180/2009 and 184/2009, dated 31.3.2012, on the files of the Munsiff Court, Kochi.

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The parties in these appeals were referred to mediation. When these matters came up before this Court on 1.12.2023, the leaned counsel for the respondent in both these appeals submitted that, though the matter has been settled as per the terms of the agreement entered into between the parties, dated 25.8.2023, there occurred an eITor in clause No.7 of the mediation agreement. Hence, the learned counsel sought time to make

¶41

RSA NOS.1022 & 1023 0F 2015

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correction in the mediation agreement. Accordingly, this Court referred back the mediation agreement to the same mediator, to incorporate the corTecti6n, in accordance with law.

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Heard both sides and perused the terms of the modified mediation agreement. The same found to be acceptable. Accordingly, the modified mediation agreement, dated 25.8.2023, is accepted.

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In consequence thereof, the judgment and decree of the trial court as well as the appellate court impugned herein, stand set aside and these regular second appeals stand disposed of, in terms of the modified mediation agreement, dated 25.8.2023.

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The modified mediation agreement shall form part of the second appellate decree.

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Sd/-

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A. BADIIARUDEEN JUDGE

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BEI=ORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAI(ULAM

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R,S.A. Nos.1022 of 2015 & 1023 of 2015

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Alexander : Appellant

Vs.

Charly

: Respondent

MEMORANDRUM OF AGREEMENT UNDER SECTION 89 0F THE CODE OF CIVIL PROCEDURE READ WITH RULES 24 & 25 0F THE KERALA CIVIL PROCEDURE (MEDIATION), RULES, 2008=

¶56

The dispute in the above Appeals arise from the Decree and Judgment in Original Suit Nos,180/2009 and 184/2009 of Munsiff.s Court, Kochi against which the Appeal Nos. 22/2012 and 37/2012 were filed in Sub Court, Kochi which were dismissed. The said Second Appeals filed against the Judgment and Decree relate to the fixation of boundary between the Appellant and the Respondent as well as the extent of the pathway provided for ingress and egress to the property of the 3 cents in extend in Sy.No.928/1 in Perumpadappu, owned by the Appellant. The parties have now agreed to resolve the disputes on the following terms and conditions:-

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-a.........----.

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AL_E.y`Arl r)Er2. _ A?PE.c.cfb^r:i

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alc#p®^on^

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-2-

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The Appellant agrees that the pathway as fixed by the lower appellate court having the width of I.10 mts from the step of the Appellant's house up to Park Road through the property of the Respondents herein can be shifted to eastern extremity of the property as per the following width (Area shown as 'A' in the sketch attached herewith with a width of 1.25 mts including the eastern wall).

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The Respondent agrees to provide the pathway shown as

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'A' in the sketch appended herewith the lieu of the pathway with regard to which the right of easement is declared by the lower appellate court.

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The Appellant agrees to provide the area shown as .C. in

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the sketch attached herewith, in exchange for the plot shown as '8. in the sketch having an extent of 8.5 sq mts with width of 0.85 mts through out. Plot 'C. is having a width of 1.25 mts on the northern side and 1.20 mts on the southern side, having an area of 8,5 sq mts.

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The Appellant agree that the pathway 'A. and .8' in the sketch having a total width of 2.10 mts is in lieu of all his claims with regard to easement right through the property of the respondent and that he will not make any further claim with regard to any easement right through the property of respondent hereafter.

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¢ty!.t.-.-:-:--.-'A

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.,.-

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AIlw^alr>Eft -APP€coritl

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-3-

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The Appellant agrees that Exchange Deed will be executed between the Appellant and Respondents with regard to .a. and 'C' schedule properties assigned by them and that both parties agree that there will not be any further claim against each other with regard to the properties in Sy.No.928/1.

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The Appellant agrees to bear the entire expense incurred (documentation charges is inclusive of stamp duty, registration charges and other expenses) for the execution and registration of the Exchange Deed.

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The Appellant shall permit the Respondent to take all necessary steps for initiating the construction of the entire compound wall forthwith on the three sides of the property o the Appellant i,e., on the western side of the pathway (areal`J;';:11*

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ryap4_ Shown as .8.) to be Set apart as Patehcysatyctjor the Appellant,cvxdgr

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Shown as .8.) to be Set apart as Patehcysatyctjor the Appellant,cvxdgr

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q=:|Toutside the pathway and on the |fafeih5side of plot icl u the said plot as well as on the top of the existing

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ry S . cJ^rd' twhalf wall on the southern and south western side

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¢ 4Dvecj>f c fo of the plot owned by the Appellant.

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1-ap..-u-.--...:..:f::..

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ALE*^choe,a.-A`pp£Lird

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``+--.:--.-i--, a es PevD^^S C{t A e-L+ - \

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-4-

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In the light of the compromise effected between the parties herein and after the compliance of the terms as stipulated in clause 6 and 7 the Appeals may be disposed of by this Hon'ble Court.

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Datedthjsthe 25th dayof August, 2023

Alexander CEan

^ppellant _

char,v4try±.

Respondent

counpe I for the Appellant I a rJH i ha i£ HLrJGJ le . 82 2-18q

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rbl esH` rLjiOv k-,@fle'c,

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VER.FICATION

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We, the parties above named, do hereby solemnly state and declare that what is contained in paragraphs 1 to 8 are true to the best of our knowledge, information and belief.

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Datedthisthe 25th dayof August, 2023.

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Appellant Respondent

¶95

A|exander ap

¶96

arfuryfl^#

Alexander v. Charly

Case brief

What is this about?

What did the court decide?

Alexander v. Charly

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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