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K.C. George Vs. Divakaran - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Judge
AppellantK.C. George
RespondentDivakaran
Excerpt:
.....1. k.c. george, aged66years, kalappillil house, kureekad village, chottanikkara p.o., pin682312 (died) 2. mary, w/o. late k.c. george, aged72years, kalappillil house, kureekad village, chottanikkara p.o. pin682312.3. jessy, d/o. late k.c. george, aged48years, kalappillil hosue, kureekad village, chottanikkara p.o., pin682312.4. jaya, d/o. late k.c. george, aged46years, kalappillil hosue, kureekad village, chottanikkara p.o., pin682312.5. james, s/o. late k.c. george, aged43years, kalappillil hosue, kureekad village, chottanikkara p.o., pin682312.6. shaiju, s/o. late k.c. george, aged41years, kalappillil hosue, kureekad village, chottanikkara p.o., pin682312. by advs.sri.dileep varghese smt.tesmy vargheese.....
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW THURSDAY, THE16H DAY OF OCTOBER201424TH ASWINA, 1936 FAO (RO).No. 11 of 2014 () --------------------------- AGAINST THE JUDGMENT

IN AS972011 OF II ADDITIONAL SUB COURT,ERNAKULAM DATED3009-2013 AGAINST THE JUDGMENT

IN OS102008 OF IST ADDITIONAL MUNSIFF COURT, ERNAKULAM DATED2706-2011 APPELLANTS/RESPONDENTS/LEGAL HEIRS OF1T PLAINTIFFS: ------------------------------------------------------------------------------------------- 1. K.C. GEORGE, AGED66YEARS, KALAPPILLIL HOUSE, KUREEKAD VILLAGE, CHOTTANIKKARA P.O., PIN682312 (DIED) 2. MARY, W/O. LATE K.C. GEORGE, AGED72YEARS, KALAPPILLIL HOUSE, KUREEKAD VILLAGE, CHOTTANIKKARA P.O. PIN682312.

3. JESSY, D/O. LATE K.C. GEORGE, AGED48YEARS, KALAPPILLIL HOSUE, KUREEKAD VILLAGE, CHOTTANIKKARA P.O., PIN682312.

4. JAYA, D/O. LATE K.C. GEORGE, AGED46YEARS, KALAPPILLIL HOSUE, KUREEKAD VILLAGE, CHOTTANIKKARA P.O., PIN682312.

5. JAMES, S/O. LATE K.C. GEORGE, AGED43YEARS, KALAPPILLIL HOSUE, KUREEKAD VILLAGE, CHOTTANIKKARA P.O., PIN682312.

6. SHAIJU, S/O. LATE K.C. GEORGE, AGED41YEARS, KALAPPILLIL HOSUE, KUREEKAD VILLAGE, CHOTTANIKKARA P.O., PIN682312. BY ADVS.SRI.DILEEP VARGHESE SMT.TESMY VARGHEESE RESPONDENTS/APPELLANTS/2ND PLAINTIFF/DEFENDANTS: -------------------------------------------------------------------------------------- 1. DIVAKARAN, S/O. LATE KODIAN, AGED48YEARS, NARANATHUKUZHI VEETTIL, KUREEKAD VILLAGE, CHOTTANIKKARA P.O., PIN682312.

2. VALLI, W/O. DIVAKARAN, AGED45YEARS, NARANATHUKUZHI VEETTIL, KUREEKAD VILLAGE, CHOTTANIKKARA P.O., PIN682312.

3. V.B. MANIKANDAN EMBRANTHIRI, S/O. BALAKRISHNAN, AGED41YEARS, BADHRA VILASAM, KUREEKAD VILLAGE, CHOTTANIKKARA P.O., PIN682312. R1 & R2 BY ADVS. SRI.T.B.THANKAPPAN SRI.T.T.HARIKUMAR SRI.RAHUL SHENOY SRI.ASHISH VIDYADHARAN R3 BY ADV. SRI.THOMAS JAMES MUNDACKAL THIS FIRST APPEAL FROM ORDER

- REMAND ORDER

HAVING BEEN FINALLY HEARD ON1610-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ K. ABRAHAM MATHEW, J.

- - - - - - - - - - - - - - - - - - - - - - - F.A.O.(RO) No.11 of 2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of October, 2014

JUDGMENT

The plaintiffs are owners of the plaint schedule properties. The defendants, who are husband and wife, are the owners of the adjoining northern property. The allegation is that they attempted to trespass into the plaint schedule properties. The plaintiffs filed the suit initially for a perpetual injunction. Later, it was amended incorporating the reliefs of recovery of possession and fixation of boundary also. The learned Munsiff decreed the suit directing the defendants to surrender vacant possession of a certain extent of land. In the appeal filed by the defendants, the learned Sub Judge set aside the judgment and decree and remanded the suit for fresh disposal. The plaintiffs challenge the order of remand.

2. Heard. F.A.O.(RO) No.11 of 2014 -2- 3. One of the prayers of the plaintiffs is to fix the northern boundary of the plaintiffs' properties. But the property of the respondents/defendants has not been described in a schedule. It is the boundary between the properties of the parties to the suit that is sought to be fixed. So it is necessary that the property of the respondents also is described in a schedule. The properties of the plaintiffs were measured on the basis of the title deeds and the re-survey plan. The Sub Judge has observed that there are mistakes in the re-survey plan and the measurement conducted on the basis of the re-survey plan cannot be accepted.

4. I have perused the report of the commissioner. It is clear from the report that there are grave errors in the re-survey plan. The measurements available in the property and the measurements shown in the re-survey plan do not tally.

5. The Sub Judge has also noted that the property of the defendants was not measured though it was necessary. F.A.O.(RO) No.11 of 2014 -3- The learned Judge was right in making the observation.

6. For the reasons stated above, I am of the view that the order of remand passed by the learned Sub Judge is justified. It is only just and proper that the plaintiffs are given an opportunity to further amend the plaint and to adduce sufficient evidence in support of their claims.

7. It is very strange to note that the learned Munsiff did not find anything wrong with the statement of the plaintiffs in the plaint that they reserve their right to pay court fees for the relief of recovery of possession. If the plaintiffs want to recover possession of the property allegedly trespassed into by the defendants, they should pay court fees first.

8. It was submitted that the parties may be given an opportunity to settle the matter. I think, having regard to the facts of the case, the best thing is to settle the dispute. In the result, this appeal is dismissed. The trial court will direct the parties to the Mediation Centre so that an attempt may be made to settle the matter F.A.O.(RO) No.11 of 2014 -4- amicably. Transmit the records forthwith. Sd/- K. ABRAHAM MATHEW JUDGE //True copy// P.A. TO JUDGE shg/


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