C.P. Saraswathy vs C.P. Venugopal

B. Kemal Pasha, J.—F.A.O. No.353 of 2011 has arisen from the judgment and decree in A.S.213/04 of the Subordinate Judge''s Court, Kottarakkara which was filed against the judgment and decree in O.S.340/2000 of the Munsiff''s Court, Punalur. F.A.O. No.5 of 2011 has arisen from the judgment and decree in A.S.210 of 2004 of the Subordinate Judge''s Court, Kottarakkara which was filed against judgment and decree in O.S.335/00 of the Munsiff''s Court, Punalur.

O.S.335/00 is a simple suit for permanent injunction as well as mandatory injunction, whereas, O.S.340/00 is a suit for fixation of boundary and consequential injunction. The plaintiff in O.S.No.340/00 is the brother of the plaintiff in O.S.335/00. It is the admitted case of the parties that an extent of 8 cents of property was settled in favour of the plaintiff in O.S.335/00 by their mother. On the date of settlement deed itself, the mother of the parties had gifted 20 cents of property in favour of her another son namely Madhusoodanan and the remaining 4 cents of property with her, to her husband, who is the father of the parties. Subsequently, the mother of the parties cancelled the gift in favour of Madhusoodanan in respect of 20 cents of property and executed a sale deed in respect of the said 20 cents of property in favour of the plaintiff in O.S.340/00. On the death of the father as intestate, in respect of 4 cents of property, which was gifted to him by his wife, devolved on his legal heirs. The plaintiff in O.S.340/00 purchased the said 4 cents from the legal heirs of the father. Even though, the plaintiff in O.S.335/00 is not a signatory to the said sale deed, she has not forwarded any claim or right over the said property. The property obtained as aforesaid through two documents by the plaintiff in O.S.340/00, is situated at the western side of the property having an extent of 8 cents being claimed by the plaintiff in O.S.335/00.

According to the plaintiff in O.S.335/00 there was a granite foundation separating her property from the property of the plaintiff in O.S.340/00, and subsequently she has put up a compound wall on such granite foundation. It is alleged that the plaintiff in O.S.340/00 has put up a car porch attached to his house in such a manner as a portion of it protrudes into her property. The case of the plaintiff in O.S.340/00 is that there was no separating boundary between the two plots and subsequently by encroaching into the portions of his property, the plaintiff in O.S.335/00 has put up a new compound wall.

Four Commissioners were appointed by the trial court and the Commissioners'' reports and plans were obtained. First two Commissioners were not accompanied by surveyors; whereas the last two Commissioners were accompanied by surveyors and plans were also appended with their reports. The reports and plans of the last two Commissioners vary each other. The trial court has chosen to decree O.S.335/00 as prayed for and to dismiss O.S.340/00, on which separate appeals were preferred. The lower appellate court, through the impugned judgment, was of the view that the matter has to be decided afresh by the trial court, for which the judgments were set aside and both the suits were remitted to the trial court. The plaintiff in O.S.335/00 has come up in appeal challenging the remand order in both the appeals.

Heard the learned counsel for the appellant Shri Rajesh Narayan Iyer and the learned counsel for the respondents Shri Bhagaval Singh. On hearing both the learned counsel for the parties in extenso, it has come out that the matter requires reconsideration by the trial court, as ordered by the appellate court. At the same time, the learned counsel for the appellant has expressed a heart burn that on going through the observations made by the lower appellate court, the trial court may become prejudiced, and would be forced to pass judgments in terms of the observations made by the lower appellate court. From the argument, it appears that the limited request is to direct the trial court to dispose of both the suits within a specific time frame, quite untrammeled by any of the observations made by the lower appellate court in the impugned judgments. The learned counsel for the respondent has pointed out that an open remand can be made, provided the parties are permitted to amend their plaints, if so advised, and also to adduce fresh/further evidence in the matter, including the appointment of another Commissioner with the assistance of the Taluk Surveyor. On hearing either side, this Court is of the view that the said aspects pointed out by both the learned counsel for the parties deserve to be considered.

In the result, both the FAOs are disposed of by directing the trial court to dispose of both the suits afresh in accordance with law, within a period of one year from today. The parties are at liberty to amend their pleadings, if so advised. The court below shall grant an opportunity to the parties to take out a fresh Commission, with the assistance of the Taluk Surveyor, to identify the properties and to prepare necessary plan and report. In the nature of this FAO, there is no order as to costs.