Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI MONDAY, THE 9TH DAY OF SEPTEMBER 2024 / 18TH BHADRA, 1946 FAO (RO) NO. 138 OF 2016 AGAINST THE JUDGMENT AND DECREE DATED 20.02.2016 IN AS NO.64 OF 2012 OF SUB COURT, MUVATTUPUZHA AND JUDGMENT AND DECREE DATED 28.09.2012 IN OS NO.428 OF 2008 OF MUNSIFF COURT,MUVATTUPUZHA APPELLANTS-RESPONDENTS 2 & 3/DEFENDANTS 2 & 3:
1 PHILIPOSE AGED ABOUT 51, S/O. ULAHANNAN, KUNNAPPILLIMADATHIL, KOOTHATTUKULAM KARA, KOOTHATTUKULAM VILLAGE, 2 TITTO PHILIP AGED ABOUT 38, W/O PHILIPPOSE, KUNNAPILLIMADATHIL, KOOTHATTUKULAM KARA,KOOTHATTUKULAM VILLAGE.
BY ADVS.
SRI.H.SIVARAMAN SRI.MATHEW CHERIAN RESPONDENTS-APPELLANTS & RESPONDENTS 1, 4 TO 6/PLAINTIFFS, DEFENDANTS 1& 4 TO 6:
1 LEELAMMA AGED 66 YEARS W/O. ABRAHAM, THOTTUPURATH HOUSE, KOOTHATTUKULAM KARA KOOTAHTTUKULAM VILLAGE.686662
2 DEEPA AGED 43 YEARS, D/O. ABRAHAM, POOTHARKULATHIL HOUSE, MULAKULAM KARA, MULAKULAM VILLAGE- 686662
3 SMITHA AGED 40 YEARS D/O. ABRAHAM, PULPARAYIL HOUSE, VETTIMOODU KARA, THIRUMARADY VILLAGE- 686662
4 VARGHESE AGED 76 YEARS, S/O. ULAHANAN, THOTTUPURATHU HOUSE, KOOTHATTUKULAM KARA, KOOTHATTUKULAM VILLAGE-686662
5 C.A.JOY S/O ABRAHAM, AGED ABOUT 69 YEARS, CHELAMATTATHIL HOUSE, KOOTHATTUKULAM KARA,KOOTHATTUKULAM VILLAGE-
686662 *6 PREETHA D/O. ABRAHAM, AGED 37 YEARS, KUTTATH HOUSE,VAIKKARA KARA, RAYAMANGALAM VILLAGE-686 662. (DELETED)
*7 PRATHEESH S/O ABRAHAM, THOTTUPURATH HOUSE, KOOTHATTUKULAM KARA, KOOTHATTUKULAM VILLAGE-68662(DELETED)
* R6 AND R7 ARE REMOVED FROM THE PARTY ARRAY OF THE APPEAL AS PER ORDER DATED 13/6/2022 IN I.A.701/2017 AT THE RISK OF THE APPELLANTS.
BY ADV SRI.JOSE TOM C. KANDATHIL FOR R5 THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 09.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
T.R. RAVI, J.
--------------------------------------------
FAO(RO).No. 138 of 2016 --------------------------------------------
Dated this the 9th day of September, 2024
JUDGMENT
The defendants 2 and 3 in O.S.No.428 of 2008 have filed this appeal, aggrieved by the order passed by the Sub Court, Muvattupuzha in A.S.No.64 of 2012, setting aside judgment of the Munsiff Court, Muvattupuzha in O.S.No.428 of 2008 and remanding the case for fresh consideration.
2. The suit was filed by respondents 1 to 3, along with respondents 6 and 7, who were later deleted from the party array, for the declaration of title, fixation of boundary and for mandatary and prohibitory injunction. The plaint schedule property is stated to be an extent of 4 cents, remaining out of 1 Acre and 4 cents of property in Sy.No.599/2/3. The trial court, after considering the entire evidence on record, held that the property has not been identified and dismissed the suit. The 1st Appellate Court, on the other hand, has held that the Commissioner has identified the properties as can be seen from Ext.C1(a) sketch and on that finding, the matter has been remanded back for fresh consideration. It is aggrieved by the remand order that this appeal is preferred. It is contended that there is no basis for finding that the property has been identified by the Commissioner.
The counsel for the appellant referred to the Commissioner's report and the plan. It can be seen from the plan and report that the entire extent of 104 cents has been shown as Plots A, B and C. The Plot A is stated to be 4 cents situated in Sy.No.599/1. The Plots B and C are stated to be the remaining 100 cents in Sy.Nos. 599/1 and 599/2. Even if the plaint schedule property is to be treated as the 4 cents shown in A schedule, the same is found to be situated in Sy.No.599/1 and not in Sy.No.599/2/3. No property in Sy.No.599/2/3 has been identified by the Commissioner as plaint schedule property. As such, the conclusion of the 1st Appellate Court that the Commissioner has identified the properties is without any basis. Hence, there is no reason for any remand since the trial court judgment cannot be found fault with.
In the result the appeal is allowed and the order dated 20.02.2016 in A.S.No.64 of 2012 of Sub Court, Muvattupuzha is set aside.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
