Damu vs Preetha

DAMU vs Preetha

Type Court Judgment Court Kerala Decided Jan 06, 2022

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https://sooperkanoon.com/case/1441178

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Citation: sooperkanoon.com/1441178
Court: Kerala High Court
Judge: Honourable Mr. Justice P.Somarajan
Decided On: Jan 06, 2022
Case Number: FAO (RO)/2/2021

Parties & Advocates

Appellant / Petitioner

DAMU

Respondent

Preetha

Excerpt

.....then again the trialcourt passed the decree against which an appeal was preferred. the first appellate court then again passed an order of remand against which the plaintiffs came up. it is a suit for fixation of boundary. the first appellatecourt remanded the matter so as to locate the property based on the survey numbers overlooking the fact that both the properties are comprised in the very same survey number. admittedly, both the properties are part and parcel of large extent of more than 40 ares from a common ancestor. hence, the various plots/parts claimed by therespective parties has to be located based on the chronological sequence of alienation/transfer. the survey was not conducted based on the chronological sequence of alienation/transfer and hence, the plan prepared by the appointed commissioner cannot be accepted. the litigation fao (ro) no.2 of 2021 3 was started in the year 2012 and it is a second round litigation. hence, it is not advisable to have a third round by maintaining the order of remand to the trial court. it is made clear that the first appellate court can permit the parties to adduce additional evidence by way of survey commission, who may be directed to locate the property chronologically in accordance with the document of transfer out of the large extent and dispose of the matteron its merit. hence, the order of remand is hereby set aside. the parties shall appear before the first appellate court on 24/01/2022. the first appellate court shall take all endeavour to dispose of the matter within a timeschedule of three months. the appeal is allowed accordingly. no cost. sd/- p.somarajan judge dmr/-

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 6th DAY OF JANUARY 2022 / 16TH POUSHA, 1943 FAO (RO) NO. 2 OF 2021 AGAINST THE JUDGMENT DATED 06.10.2020 IN AS No.5/2019 OF SUB COURT, VATAKARA AGAINST THE JUDGMENT DATED 8.11.2018 IN OS 70/2012 OF MUNSIFF COURT, VATAKARA APPELLANTS (RESPONDENTS/PLAINTIFFS): 1 DAMU, AGED 80 YEARS, D/o CHATHAN, 2 GANESHAN, AGED 59 YEARS, S/o DAMU, BY ADVS. T. SETHUMADHAVAN (SR) PREETHI. P.V. M.V.BALAGOPAL DEEPA NARAYANAN RESPONDENTS (APPELLANTS/DEFENDANTS):

1 PREETHA, AGED 57 YEARS, W/o SOMAN, 2 SWAROOP.P.T., AGED 30 YEARS, S/o LATE SOMAN, 3 PRINCY.P.T., AGED 39 YEARS, W/o BYJU, PAKKUNIPARAMBATH HOUSE, CHORODE POST, KOZHIKODE DISTRICT-673 106. 4 PRINSHA.P.T., W/o RENJITH, NADUKKANDY MEETHAL HOUSE, VATAKARA, NADAKKUTHAZHA POST, PIN-673 112. R1 TO R4 BY ADVS. B.KRISHNAN R.PARTHASARATHY

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) No.2 of 2021 2

JUDGMENT

It is against the order of second remand the plaintiffs came up. Earlier, the suit was decreed. It was set aside by the first appellate court and remanded the matter back to the trial court for fresh disposal. Then again the trial

court     passed        the    decree       against       which    an   appeal      was
preferred.        The first appellate court then again passed an
order of remand against which the plaintiffs came up.                               It
is a suit for fixation of boundary.                          The first appellate

court remanded the matter so as to locate the property based on the survey numbers overlooking the fact that both the properties are comprised in the very same survey number. Admittedly, both the properties are part and parcel of large extent of more than 40 ares from a common ancestor. Hence, the various plots/parts claimed by the

respective parties has to be located based on the chronological sequence of alienation/transfer. The survey was not conducted based on the chronological sequence of alienation/transfer and hence, the plan prepared by the appointed commissioner cannot be accepted. The litigation FAO (RO) No.2 of 2021 3 was started in the year 2012 and it is a second round litigation. Hence, it is not advisable to have a third round by maintaining the order of remand to the trial court. It is made clear that the first appellate court can permit the parties to adduce additional evidence by way of survey commission, who may be directed to locate the property chronologically in accordance with the document of transfer out of the large extent and dispose of the matter

on its merit.           Hence, the order of remand is hereby set
aside.      The parties shall appear before the first appellate
court on 24/01/2022.            The first appellate court shall take
all     endeavour       to   dispose   of    the      matter    within    a    time

schedule of three months. The appeal is allowed accordingly. No cost. Sd/- P.SOMARAJAN JUDGE DMR/-

Same Court & Year Kerala · 2022 Same Parties DAMU vs Preetha Same Judge Honourable Mr. Justice P.Somarajan