Kerala High Court
Savathri Amma vs Vijayalakshmi on 15 November, 2024
2024:KER:87286
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
RSA NO. 168 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 04.11.2022 IN
AS NO.48 OF 2017 OF SUBORDINATE JUDGES COURT, CHERTHALA
ARISING OUT OF THE JUDGMENT AND DECREE DATED 01.07.2017 IN
OS NO.418 OF 2012 OF ADDITIONAL MUNSIFF COURT,CHERTHALA
APPELLANTS/APPELLANTS/DEFENDANTS:
1 SAVATHRI AMMA
AGED 75 YEARS
D/O BHARGAVI AMMA,
AND W/O RAGHAVAN,
VADAKKETHAZHAPPIL,
NADUVATHU NAGAR,
THURUTHY BHAGAM,
AROOKUTTY VILLAGE,
ALAPPUZHA, PIN - 688526
2 SIVAKUMAR
AGED 54 YEARS
S/O RAGHAVAN NAIR,
VADAKKETHAZHAPALLI,
NADUVATHU NAGAR, P.O.
THURUTHY BHAGAMMURI,
AROOKUTTY VILLAGE,
ALAPPUZHA, PIN - 688526
3 KRISHNAKUMAR
AGED 50 YEARS
S/O RAGHAVAN NAIR,
VADAKKE THAZHAPALLI,
2024:KER:87286
RSA NO. 168 OF 2023
2
NADUVATHU NAGAR.P.O,
THURUTHYBHAGAM MURI,
AROOKUTTY VILLAGE,
ALAPPUZHA, PIN - 688526
4 RAJESWARI.
AGED 48 YEARS
D/O RAGHAVAN NAIR,
VADAKKETHAZHAPALLI,
NADUVATHU NAGAR.P.O.,
THURUTHI BHAGAM MURI, AROOKUTTY VILLAGRE,
ALAPPUZHA, PIN - 688526
5 RAMADEVI.
AGED 40 YEARS
D/O RAGHAVAN NAIR,
VADAKKE THAZHAPALLI,
NADUVATHU NAGAR, P.O.
THURUTHY BHAGAM MURI,
AROOKUTTY VILLAGE,
ALAPPUZHA., PIN - 688526
BY ADV ROY CHACKO
RESPONDENTS/DEFENDANTS/PLAINTIFFS 1 TO 3:
1 VIJAYALAKSHMI
AGED 67 YEARS
W/O VELAPPA PANICKER,
PARAMBATHAZHATHU FROM PUTHEN PURAYIL,
NADUVATHU NAGAR,P.O.,
THURUTHIBAGAM MURI,
AROOKUTTY VILLAGE,
ALAPPUZHA,
PIN - 688526
2024:KER:87286
RSA NO. 168 OF 2023
3
2 VIPIN
AGED 46 YEARS
S/O VELAPPA PANICKER,
PARAMBATHAZHATHU FROM PUTHEN PURAYIL,
NADUVATHU NAGAR P.O.,
THURUTHI BHAGAM MURI,
AROOKUTTY VILLAGE,
ALAPPUZHA., PIN - 688526
3 VINEETH
AGED 35 YEARS
S/O VELAPPA PANICKER,
PARAMBATHAZHATHU FROM PUTHEN PURAYIL,
NADUVATHU NAGAR.P.O.,
THURUTHIBHAGAM MURI,
AROOKUTTY VILLAGE,
ALAPPUZHA., PIN - 688526
BY ADVS.
Ramnath M. P.
P.RAJESH (KOTTAKKAL)
K.J.SEBASTIAN
M.VARGHESE VARGHESE
UMA R.KAMATH
S.SANDHYA
BEPIN PAUL
S.DEEPAK
K.S AKSHAY MOHAN
AJESH K. ANTONY
ANTONY THARIAN
SHALU VARGHESE
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 15.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2024:KER:87286
RSA NO. 168 OF 2023
4
JUDGMENT
1. When this Regular Second Appeal came up for admission today, both sides advanced arguments. After hearing the Counsel on both sides, this Court is of the prima facie view that the matter is liable to be remanded to the Trial Court for fresh consideration. Hence the Regular Second Appeal is admitted on the following substantial question of law:
1. Whether the Trial Court as well as the First Appellate Court is justified to decree the suit relying on Ext. A7 Commission Report and Ext.A7(a) Survey plan which were prepared without notice to the defendants in an earlier suit in which the defendants were not parties ?
2. With the consent of both the counsels, the arguments on 2024:KER:87286 RSA NO. 168 OF 2023 5 the aforesaid substantial question of law are considered.
3. Since I am of the view that the matter is liable to be remanded, I am not extracting all the pleadings in the suit.
4. The defendants in the suit are the appellants. The suit was one for declaration, permanent prohibitory injunction and recovery of possession. The reliefs were sought with respect to 14 ½ cents of land in Sy. No.104/14 which is included in the plaint schedule property. According to the plaintiffs there was an earlier suit O.S. No.661/2008, when the plaintiffs found that the property owner on the eastern side encroached into their property. When commission was taken out in the said suit, it was found that the plaint schedule property having an extent of 14 2024:KER:87286 RSA NO. 168 OF 2023 6 ½ cents of land belonging to them which is situated in the outside the compound wall on the southern side are in the possession of the defendants herein. According to the plaintiff, the predecessor of the plaintiffs was in the habit of leaving some property outside the compound wall while constructing the compound wall.
5. The defendants filed Written Statement contenting inter alia that the plaint schedule property as described in the schedule is not identifiable. The plaintiffs do not have title over the plaint schedule property. The compound wall which is constructed by the plaintiff is having an old age of more than 50 years. The defendants and their predecessor have been in exclusive possession of the plaint schedule property since the year 1121ME. If at all 2024:KER:87286 RSA NO. 168 OF 2023 7 the plaintiff is having any right, it is lost by adverse possession.
6. The Trial Court decreed the suit relying on Ext.A7 Commission Report and Ext.A7(a) Plan which is proved before it by examination of PW2 Advocate Commissioner and PW3 Surveyor who prepared the same in O.S. No.661/2008. The Appeal filed the defendants before the First Appellate Court was dismissed confirming the judgment and decree of the Trial Court.
7. On going through the evidence of PW2 and PW3, it is revealed that the measurement in the earlier suit was done not with reference to the plaint schedule property in the present suit. They have specifically stated that they had no idea about the plaint schedule property in the present suit. Naturally, they do not have any idea about 2024:KER:87286 RSA NO. 168 OF 2023 8 the dispute between the plaintiffs and defendants in the present suit. Identification was not done with reference to the plaint schedule property in the present suit. Since the defendants were not parties to the earlier suit O.S. No.661/2008, the said measurements were taken in the absence of the defendants. The defendants did not get any opportunity to object the said Ext.A7 Commission Report and Ext.A7(a) Plan .
8. Going by the evidence of PW2 and PW3, I am of the view that the Trial Court as well as the First Appellate Court should not have relied on Ext.A7 Commission Report and Ext.A7(a) Plan to decree the suit holding that the plaint schedule property is identified in the said Commission Report and Plan. The plaintiffs ought to have taken out the Survey Commission in the present 2024:KER:87286 RSA NO. 168 OF 2023 9 suit and ought to have executed the said Commission in the presence of the defendants in order to identify the plaint schedule property in the present suit. Such an exercise was not done in the present suit. Hence I am of the view that the suit is liable to be remanded to the Trial Court to identify the plaint schedule property by taking a Survey Commission with the participation of the defendants. The question of law is answered in the negative and in favour of the appellant.
9. Hence this Regular Second Appeal is allowed setting aside the impugned judgments and decrees passed by the Trial Court as well as the First Appellate Court and remanding the matter back to the Trial Court for fresh consideration in the light of the aforesaid observations.
Since the appeal is allowed remanding the matter back 2024:KER:87286 RSA NO. 168 OF 2023 10 to the Trial Court, the court fee paid on the Regular Second Appeal is directed to be refunded to the appellants. The parties are directed to appear before the Trial Court on 12/12/2024.
Sd/-
M.A.ABDUL HAKHIM JUDGE sms