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
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
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
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
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
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
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
