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Anikuttan vs Vikraman Pillai on 11 October, 2010

Kerala High Court
Anikuttan vs Vikraman Pillai on 11 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS.No. 476 of 2000(A)



1. ANIKUTTAN
                      ...  Petitioner

                        Vs

1. VIKRAMAN PILLAI
                       ...       Respondent

                For Petitioner  :SRI.K.SATHEESH KUMAR

                For Respondent  :SRI.K.B.PRADEEP

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :11/10/2010

 O R D E R
                     M.N. KRISHNAN, J.
                  ...........................................
                       A.S.NO.476 OF 2000
                 .............................................
          Dated this the 11th day of October, 2010.

                        J U D G M E N T

This is an appeal preferred against the judgment and

decree of the Subordinate Judge, Nedumangad in

O.S.No.159/1996. The trial court had granted a decree

for declaration, mandatory injunction and for damages. It is

against that decision, the appellants have chosen to file

the appeal. The appeal is preferred on 3.7.2000.

I.A.No.3666/2010 is filed to delete the second appellant

from the party array contending that he had died on

27.4.2000 and therefore, at the time of his death the

second appellant was not alive. It is a sad state of affairs.

But if the decree cannot be sustained against others, then

irrespective of the death of this person, the matter requires

interference. Now to the brief facts of the case.

2. The plaintiff had purchased the property by virtue of

three documents and according to him, there are definite

boundaries on all the sides of the property. It is the specific

contention that there is a pathway having a width of 3 feet

: 2 :
A.S.NO.476 OF 2000

lying on the eastern side of the plaint schedule property. It

is also submitted that there is a mud bund separating the

pathway from the plaint schedule property and the plaintiff

had put up a fence on that mud bund. According to the

plaintiff, the defendants on 20.1.1994 demolished the

boundary fence and cut and removed the yielding coconut

trees. They had done it with the intention to widen the

pathway. Hence the suit.

3. The defendants, on the other hand, would contend

that the pathway is having a width of 6 feet and really the

plaintiff has trespassed into the pathway and put up a

barbed fence in between 27.1.1994 and 29.3. 1994. The

defendants are residing little away from the property and

therefore they did not know about it. The plaintiff does not

have any right over the pathway and hence, prays for

dismissal of the suit.

4. Heard the learned counsel for both sides. The trial

court on an analysis of the materials granted a decree in

favour of the plaintiff. Admittedly the plaintiff has got the

property. It is also an admitted fact that there is a pathway.

: 3 :
A.S.NO.476 OF 2000

The disputed question is whether the pathway is having a

width of 3 feet or 6 feet and whether the defendants had

trespassed into the plaint schedule property and attempted

to remove the existing boundary to widen the pathway or

whether the plaintiff has trespassed into the pathway and

attempted to reduce the width of the pathway. The defendants

in their written statement have specifically contended that

they have no objection in the plaintiff securing a decree

declaring his title and possession over his own property

after identifying and measuring it as per the revenue rules.

So the contentions of the defendants are to the effect that

the plaint schedule property has to be measured and its

boundary has to be fixed and when it is so fixed, they do

not have any objection. But, unfortunately the Commissioner

has not attempted to identify the property with respect to the

measurements in the property. Therefore it has to be stated

that unless the property is properly identified with respect

to the plaintiff’s document, one may not be able to precisely

show where his boundary lies. In the light of the fact that

the defendants have admitted that they have no objection in

: 4 :
A.S.NO.476 OF 2000

the plaintiff in getting the property as per his document, the

only possible solution is now to identify the property with

respect to the title deed of the plaintiff and decide the

matter in accordance with law. The existence of the bund

as alleged in the plaint and its remnants are not seen

anywhere. It is stated that it had been demolished. Similarly

what is seen is a barbed wire fence which is cut into pieces

and the granite stone pillars are also cut into pieces. But

the fundamental question is where does the boundary of the

plaintiff come. That can be done only with respect to the

measurements in accordance with the title deed.

5. Therefore the judgment and decree under

challenge are set aside and the matter is remitted back to the

trial court with a direction to permit the plaintiff to take out

a commission, if possible, the very same Commissioner who

has visited the properly, if available to demarcate the

property in accordance with the title deed, fix its boundaries

and then proceed to dispose of the matter in accordance with

law. The plaintiff is also directed to take steps to implead

the legal representatives of the second defendant and the

: 5 :
A.S.NO.476 OF 2000

court below is directed to condone the delay and set aside

the abatement in impleading them for the reason that

there was no mistake on the part of the plaintiff in not

bringing to the notice of the court the death of the person.

Parties are directed to appear before the court on

15.11.2010 and let the trial court to dispose of the matter

within a period of 6 months from the date of first

appearance of the parties. It is made very clear that the

Commissioner’s report and plan submitted in the suit are

kept in tact.

When I want to peruse the written statement, it is

seen that it is not seen in the bundle and in the index list an

‘into’ mark is put. Therefore the original of the written

statement is not traceable. Permission be accorded to the

parties to give a copy and let it be reconstrued and the

matter be disposed of.

M.N. KRISHNAN, JUDGE.

cl

: 6 :
A.S.NO.476 OF 2000

M.N. KRISHNAN, J.

…….. ………………………………….
A.S.NO.476 OF 2000
………………………………………
11th day of October, 2010.

J U D G M E N T

: 7 :
A.S.NO.476 OF 2000

M.N. KRISHNAN, J.

…………………………………….
A.S.NO.389 OF 2001
………………………………………
8th day of September, 2010.

J U D G M E N T

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