Remanded

Vasudevan .R v. Saravanan

Kerala HC6 Dec 2023RSA/704/2016

Case brief

AI extract

What is this about?

This regular second appeal challenged the dismissal of a suit for injunction by the lower courts for lack of proper property identification. The High Court set aside the lower decrees, remanded the case for fresh disposal with a survey commission, directed impleadment of necessary parties, and maintained status quo.

What did the court decide?

Decree and judgments set aside; case remanded with direction to appoint survey commission and implead necessary parties; status quo maintained.

Vasudevan .R Vs Saravanan — Constitutional and Fundamental Rights | 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 A. BADHARUDEEN

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WEDNESDAY, THE 6^TH DAY OF DECEMBER 2023/15TH AGRAHAYANA, 1945

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RSA NO. 704 OF 2016

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AGAINST THE DECREE AND JUDGMENT DATED 16.02.2016 IN AS 222/2012 OF II ADDITIONAL DISTRICT COURT,PALAKKAD

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AGAINST THE DECREE AND JUDGMENT DATED 28.09.2012 IN OS 405/2011 OF

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ADDITIONAL MUNSIFF COURT, PALAKKAD

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APPELLANT/APPELLANT/PLAINTIFF:

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VASUDEVAN .R AGED 76 YEARS S/O.LATE RAMANKUTTY EZHUTHASSAN, AGED 76, H.NO. 20/167, EDAYAR STREET, MANKAVU, KOPPAM AMSOM, PALAKKAD I

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BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 SARAVANAN AGED 40 YEARS S/O.PARAMESWARAN, GOKULAM HOUSE, EDAYAR STREET, KOPPAM AMSOM, PALAKKAD I

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2 ANEESH AGED 24 YEARS S/O.NARAYANANUNNI, SREEKRISHNA HOUSE, ASARITHARA, KALLEPPULLY POST, PALAKKAD TALUK – 678 509

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3 SOORYADAS AGED 23 YEARS S/O.SURESH KUMAR, EDAYAR STREET, MANKAVU, KOPPAM AMSOM, PALAKKAD I

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4 ARUN AGED 23 YEARS S/O.BALACHANDRAN, EDAYAR STREET,

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RSA NO. 704 OF 2016

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MANKAVU, KOPPAM AMSOM, PALAKKAD – 678 001

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5 SANIL KUMAR

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AGED 23 YEARS S/O.SASIKUMAR, EDAYAR STREET,

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MANKAVU, KOPPAM AMSOM, PALAKKAD I

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6 ANUSH

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AGED 23 YEARS S/O.ASHOKAN, KALVAKULAM, KOPPAM AMSOM, PALAKKAD I

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7 CC.PRASAD

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AGED 25 YEARS S/O.SASIDHARAN, KALVAKULAM,

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NEW COLONY, KOPPAM AMSOM, PALAKKAD I

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8 ASWATH

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AGED 25 YEARS S/O.MOHANDAS, AISWARYA NIVAS, KALVAKULAM, KOPPAM AMSOM, PALAKKAD I

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9 PARTHIPAN AGED 30 YEARS S/O.MOHANAN, MANKAVU, KOPPAM AMSOM, PALAKKAD I

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10 SARAVANAN

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AGED 27 YEARS

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S/O.MOHANAN, NEW COLONY,

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MANKAVU, KOPPAM AMSOM, PALAKKAD I

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BY ADV SRI.JACOB SEBASTIAN

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA NO. 704 OF 2016

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JUDGMENT

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Dated this the 6^th day of December, 2023

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This regular second appeal has been filed under Section

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100 r/w Order XLII Rules 1 and 2 of the Code of Civil Procedure, challenging judgment and decree dated 16.02.2016 in A.S.No.222/2012 on the files of the Additional District CourtII, Palakkad and also the judgment and decree dated 28.09.2012 in O.S.No. 405/2011 on the files of the Additional Munsiff's Court, Palakkad. The appellant herein is the plaintiff in the above suit and the respondents are the defendants.

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Heard the learned counsel for the appellant as well as the learned counsel for the respondents.

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I shall refer the parties in this regular second appeal as ' plaintiff ' and ' defendants ' for convenience.

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At the time of admission, my learned predecessor, as

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per order dated 28.07.2016, raised the following substantial questions of law.

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RSA NO. 704 OF 2016

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“(1) Being a suit for injunction simplicitor and as there is no dispute with regard to the identity and demarcation of the boundaries of the plaint schedule property, are the courts below legally correct in dismissing the suit for the reason that, no survey measurements and identification of the property have been made in the case?

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(2) Have the courts below committed legal perversity in analysing the evidence available in the case and consequently coming to an improper conclusion in the matter?”

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In this case, the plaintiff asserts title and possession over an extent of 5.72 ares in Sy.No.30/2019 covered by assignment deed No.1465/1980 dated 14.03.1980. Apprehending trespass upon the property at the instance of the defendants, the present suit was filed, seeking the relief of permanent prohibitory injunction.

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The defendants entered appearance and disputed title, possession and right of the plaintiff over the plaint schedule property and raised contention that the intention of the

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RSA NO. 704 OF 2016

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plaintiff is to grab municipal road, situated on the three sides of the plaint schedule property, except on the western side, where a canal maintained by the Irrigation Department is in existence.

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The court below raised necessary issues and tried

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the case. PW1 examined and Exts.A1 to A3 were marked on the side of the plaintiff. DW1 examined and no evidence let in by the defendants. CW1 examined and Exts.C1 and C1(a) also were marked. The trial court considered the evidence and finally, dismissed the suit on the finding that the plaint schedule property is not properly identified based on the title deed. Further, the trial court found that the boundary descriptions as per Ext.A1 with that of rough sketch filed by the commissioner and Ext.A3 location sketch appear to be different and for want of identity, the suit was dismissed.

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Challenging the same, A.S.No.222/2012 was filed before the District Court, Palakkad, and the District Judge, dismissed the appeal and confirmed the finding of the trial court as per judgment and decree dated 16.02.2016.

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RSA NO. 704 OF 2016

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On hearing the matter, it seems that the property obtained by the plaintiff, on the strength of assignment deed marked as Ext.A1, from illegal encroachment required to be protected and the right of the defendants, including the general public, to maintain the road on the three sides of the plaint schedule property also to be protected. Since the suit was dismissed for want of proper identity of the property covered by the title deed of the plaintiff, I am of the view that an opportunity shall be given to the plaintiff to locate the property by appointing

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a survey commission, in accordance with the title deed, showing the existence of plaint schedule property as per the title deed and the lie of the road on its surroundings.

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The learned counsel for the defendants submitted

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that in this case, Municipality as well as the Irrigation Department are necessary parties since the surrounding road and canal are owned by them. This submission appears to be convincing.

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In a suit for simple injunction, when the property is

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RSA NO. 704 OF 2016

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properly identified within the well defined boundaries, injunction could be granted. When the identity of the subject matter is in dispute, going by the title deed description and the narration of the same by the commissioner, as read out from the evidence of PW1, without properly identifying the property, an injunction could not be granted. Therefore, it is held that the trial court as well as the appellate court could not be faulted in the matter of dismissal of the suit for want of proper identity of the plaint schedule property and as such, it could not be held that the courts below committed legal perversity in analysing the evidence available in this case, in any manner.

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Answering the substantial questions of law as above,

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the decree and judgments under challenge stand set aside and the matter remanded back to the trial court for fresh disposal, facilitating the plaintiff to appoint a survey commission to identify the plaint schedule property on the basis of Ext.A1 title deed specifically separating from the municipal road and the irrigation canal.

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RSA NO. 704 OF 2016

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It is also made clear that the defendants are also at liberty to contend and establish the road in existence, in accordance with law.

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Since it is found that the argument advanced by the learned counsel for the defendants to implead the Municipality and the Irrigation Department in this case is having force, the plaintiff is directed to implead them in the party array and proceed further in accordance with law.

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Parties are directed to appear before the trial court on 04.01.2024.

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After having allowed the parties to agitate the matter afresh, the trial court is directed to dispose of the case, at any rate, within a period of five months from 04.01.2024.

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All interlocutory applications pending in this regular second appeal stand dismissed.

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Parties are directed to maintain status quo in relation to the plaint schedule property for a period of five weeks from today and any further interim order shall be considered by the

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RSA NO. 704 OF 2016

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trial court.

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Registry shall forward a copy of this judgment to the trial

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court for information and compliance.

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Sd/A. BADHARUDEEN JUDGE

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nkr

Vasudevan .R v. Saravanan

Case brief

What is this about?

What did the court decide?

Vasudevan .R v. Saravanan

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

Coram

Case details

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