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
