Allowed

Ahamadhummal Beevi Kunju,(Died) v. Retna Bai

Kerala HC4 Jul 2023RSA/1328/2009

Case brief

AI extract

What is this about?

The Court combined the disposal of a regular second appeal and a connected writ petition. Upon the parties filing a settlement agreement regarding property boundary division, the Court set aside the earlier decree in the appeal and passed a fresh decree based on the new plan as part of the settlement. The writ petition was dismissed as withdrawn.

What did the court decide?

Judgment in A.S.No.95/1998 set aside; Decree passed fixing eastern boundary per new plan (Ext.C7(a)); Writ Petition withdrawn.

Ahamadhummal Beevi Kunju,(Died) Vs Retna Bai — Property and Title | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

¶4

TUESDAY, THE 4TH DAY OF JULY 2023 / 13TH ASHADHA, 1945

¶5

WP(C) NO. 15762 OF 2007

¶6

AGAINST THE ORDER/JUDGMENT OS 1510/1976 OF PRINCIPAL MUNSIFF COURT,NEDUMANGAD

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AS 95/1998 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM

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PETITIONER/S:

¶9

1SHAJI
AGED 36 YEARS, PANAYAM HOUSE, NEAR AMMANCOIL,,
VADAKKUMKARA MURI, NEDUMANGADU VILLAGE.

¶10

2ABDUL WAHID SO MUHAMMADU KANNU
AGED 55 YEARS, ANIZ MANZIL, VALAMKUZHI VEMBU,, ANADU
MURI, ANAD VILLAGE.
BY ADVS.
SRI.R.S.KALKURA
SRI.HARISH GOPINATH
SRI.M.S.KALESH
SRI.KIRAN SANKAR
SRI.V.VINAY MENON

¶11

RESPONDENT/S:

¶12

1AHMED UMMAL BEEVIKUNJU
KURAKKODIE PUTHENVEEDU, THEKKUMKARA MURI,, NEDUMANGADU
VILLAGE.
2DAISY LAZARUS RATNA BAI
MURUVATHUKKAL PUTHENVEEDU,, MYLAMOODU, ARUVIKKARA
VILLAG.
BY ADVS.
SRI.M.AJAY IRUMPANAM
SRI.G.HARIKRISHNAN TRIPUNITHURA
SRI.MANU V.
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD

¶13

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
04.07.2023, ALONG WITH RSA.1328/2009, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶14

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶15

PRESENT

¶16

THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

¶17

TUESDAY, THE 4TH DAY OF JULY 2023 / 13TH ASHADHA, 1945

¶18

RSA NO. 1328 OF 2009

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 AS 95/1998 OF I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM
OS 1510/1976 OF I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM

¶20

APPELLANT/RESPONDENT/PLAINTIFF/ADDL.APPELLANT:

¶21

1AHAMADHUMMAL BEEVI KUNJU,(DIED)
KURAKKOTTUPUTHEN VEEDU, THEKKUMKARA MURI,, NEDUMANGADU
VILLAGE, THIRUVANANTHAPURAM DISTRICT.

¶22

ADDL.2M.HASHIM
AGED 55 YEARS,S/O P MEERA SAHIB, THADATHIL HOUSE,
NEDUMANGAD P.O, THIRUVANANTHAPURAM -695541. (IS IMPLEADED
AS ADDITIONAL 2ND APPELLANT AS PER ORDER DATED 04.07.2023
IN IA.1/2023)
BY ADVS.
RAM MOHAN.G.
G.P.SHINOD
GOVIND PADMANAABHAN
AJIT G ANJARLEKAR
ATUL MATHEWS
GAYATHRI S.B.
SRI.MANU.V

¶23

RESPONDENT/APPELLANT/DEFENDANT/ADDL.RESPONDENTS:

¶24

1RETNA BAI
THEKKUMKARA MURI, NEDUMANGADU VILLAGE, THIRUVANANTHAPURAM
DISTRICT.

¶25

ADDL.2 SHAJI, S/O.SHAHUL HAMEED,AGED 42 YEARS,RESIDING AT PANAYAM HOUSE,NEAR AMMANKOVIL,VADAKKUMKARA,NEDUMANGAD.

¶26

ADDL.3ABDUL VAHID,
S/O.MOHAMMED KUNJU, AGED 40, ANEEZ, ANZIL, VALAMKUZHIYIL,
VEMBAYIL,ANAD MURI,ANAD VILLAGE,NEDUMANGAD. (ARE IMPLEADED
AS ADDITIONAL RESPONDENTS 2 AND 3 AS PER ORDER DATED
04.07.2023 IN IA.295/2013)
BY ADVS.
R.S.KALKURA
M.S.KALESH
HARISH GOPINATH
GENS GEORGE ELAVINAMANNIL
A.V.PRIYA

¶27

RSA.1328/2009 & WP(C).15762/2007

¶28

¶29

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
04.07.2023, ALONG WITH WP(C) NO.15762/2007, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶30

RSA.1328/2009 & WP(C).15762/2007

¶31

¶32

MOHAMMED NIAS C.P., J

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............................................................

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R.S.A. No.1328 of 2009

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and

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W.P(C) No.15762 of 2007

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Dated this the 4^th day of July, 2023

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JUDGMENT

¶39

RSA No.1328/2009 is filed by the plaintiff in OS No.1510/1976 of the I Additional Munsiff's Court, Thiruvananthapuram, a suit filed for declaration of plaintiff's title and possession over 'B' schedule and also for recovery of 'B' schedule property, if in case it is found to be in possession of the defendant because of the attempted trespass by him, pending the suit. The trial court, by its judgment dated 11.7.1996, found that the plaintiff is in possession of the property on the western side of 'GH' line in Ext.C6(a) plan which corresponds to 'AB' line in Ext.C4 plan and decreed the suit permitting her to fix the boundary at 'GH' line in Ext.C6(a) plan appended to the decree. The defendant filed A.S. 95/1998 on the files of the I Additional District Court, Thiruvananthapuram, wherein by judgment dated 8.3.2004, the decree was varied permitting the plaintiff to fix the common boundary at 'CD' line in Ext.C6(a) plan, instead of 'GH' line as decreed by the trial court. It was aggrieved by the appellate judgment that the plaintiff filed the present RSA.

¶40

RSA.1328/2009 & WP(C).15762/2007

¶41

¶42

Shaji and Abdul Wahid filed W.P(C) No.15762/2007 against the appellant and the respondent in RSA 1328/2009, challenging Ext.P9 order dated 17.12.2005 in EP 86/2005 in OS 1510/1976 on the file of the Munsiff's Court, Nedumangad.

¶43

The above matters were sent for mediation at the request of the parties. A report dated 16.06.2023 has been filed by the Mediator intimating that the matter is settled, and the terms of the agreement are attached, which reads as follows:-

¶44

The parties have drawn up a new plan, dated 10/01/2023, prepared by A.Thajudeen, after measuring their respective properties, fixing the Eastern boundary of the Plaintiff's property at 'CD' line in the new plan. The parties agree that the same shall be the boundary separating their respective properties.

¶45

The above-mentioned plan may kindly be marked in evidence as Exhibit C7 (a).

¶46

As per the new plan, the disputed area, with a total extent of 7.265 cents, has been divided into two. The area shown as rectangle ABCD with an extent of 3.705 cents hereby belongs to the Plaintiff, and the rectangle CDEF with an extent of 3.560 cents belongs to the defendant.

¶47

Accordingly, the Judgment and Decree dated 08/03/2004 in AS.No.95/1998 on the files of I Addl.District Court, Thiruvananthapuram, which arose from OS.No.1510/1976 on the files of III Addl.Munsiff Court, Thiruvananthapuram, may be set aside, and a Decree may be passed in favour of the Plaintiff fixing the Eastern boundary of the Plaintiff's property at 'CD'

¶48

RSA.1328/2009 & WP(C).15762/2007

¶49

¶50

line in accordance with Exhibit C7 (a) plan.

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The Exhibit C7 (a) plan shall form part of the Decree.

¶52

The parties shall refrain from trespassing into each others property.

¶53

The respondent in R.SA No.1328 of 2009, who is the petitioner in the connected Writ Petition WP(C) No.15762 of 2007, hereby agrees to withdraw the Writ Petition.

¶54

In view of the above memorandum of settlement, the Judgment and Decree dated 08.03.2004 in A.S.No. 95/1998 on the files of the I Additional District Court, Thiruvananthapuram, which arose from OS.No.1510/1976 on the files of III Additional Munsiff's Court, Thiruvananthapuram, are hereby set aside, and a decree is passed in favour of the appellant/plaintiff fixing the eastern boundary of the plaint schedule property at 'CD' line in accordance with Ext.C7(a) plan. The memorandum of settlement will form part of the decree. The new plan dated 10/01/2023, submitted after identifying the respective properties by Sri. A.Thajudeen, is taken on record and marked as Ext.C7(a) and the same will also form part of the decree.

¶55

R.S.A No.1328/2009 is allowed as above. In view of the above settlement, W.P(C) No.15762/2007 is dismissed as withdrawn.

¶56

Sd/-

¶57

MOHAMMED NIAS C.P., JUDGE

¶58

okb/

¶59

RSA.1328/2009 & WP(C).15762/2007

¶60

¶61

PETITIONERS' APPENDIX IN WP(C) NO. 15762/2007

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P1: TRUE COPY OF THE JUDGMENT IN AS 95/1998 DT.8.3.2004 OF THE 1 ADDL. DISTRICT COURT, TRIVANDRUM

¶63

P2: TRUE COPY OF EXT.C6A PLAN MENTIONED IN THE JUDGMENT IN AS 95/1998

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P3: TRUE COPY OF COMMON ORDER IN IA 3444/04 & 3436/04 IN OS 207/89 DT 28.02.2005 OF MUNSIFF COURT, NEDUMANGAD

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P4: TRUE COPY OF SALE DEED 4834/2005

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P5: TRUE COPY OF JUDGMENT IN CMA 9/2005 DT. 20.7.2006 OF SUB COURT, NEDUMANGAD

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P6: TRUE COPY OF JUDGMENT IN WP(C) NO.30469/2006 DT. 29.11.2006

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P7: TRUE COPY OF THE OBJECTAION IN EP SUBMITTED BY THE 1ST RESPONDENT

¶69

P8: TRUE COPY OF EP 86/2005 FILED BY R1

¶70

P9: TRUE COPY OF ORDER DT. 17.12.05 IN EP 86/05 IN OS 1510/76 OF MUNSIFF COURT, NEDUMANGAD

Ahamadhummal Beevi Kunju,(Died) v. Retna Bai

Case brief

What is this about?

What did the court decide?

Ahamadhummal Beevi Kunju,(Died) v. Retna Bai

Case brief

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