IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 AS.No. 476 of 2000(A) -------------------------------- OS.159/1996 of SUB COURT, NEDUMANGAD .................... APPELLANT(S): DEFENDANTS --------------------------------------------- 1. ANIKUTTAN, SON OF PADMANABHA PILLAI, AGED 25, MADANKAVU PUTHEN VEEDU, CHELLAMCODU MURI,NEDUMANGAD VILLAGE. *2. RETNAKARAN, S/O. KUNJUKRISHNAN NADAR, AGED 42, CHUDUKATTINMUKAL VEEDU, CHELLAMCODU MURI, NEDUMANGAD VILLAGE.(DIED) *THE SECOND APPELLANT IS REMOVED FROM THE ARRAY OF APPELLANT WITH THE DIRECTOR TO THE PLAINTIFF TO IMPLEADED LR'S OF THE SECOND DEFENDANT BEFORE THE TRIAL COURT VIDE ORDER DT. 11.10.10 IN IA. 3666/10. 3. BHUVANACHANDRAN NAIR, S/O. VELAYUDHAN PILLAI, AGED 39, PUNNAPURATHU VEEDU, CHELLAMCODU MURI, NEDUMANGAD VILLAGE. 4. MOHANAN, S/O. SUKUMARAN NADAR, AGED 37 , CHUDUKATTNMUKAL, THADATHARIKATH VEEDU, CHELLANCODU MURI, NEDUMANGAD. BY ADV. SRI.K.SATHEESH KUMAR RESPONDENT(S): PLAINTIFF ---------------------------------------- VIKRAMAN PILLAI, S/O. KRISHNA PILLAI, AGED 46, KRISHNAVILASOM, POOVATHOOR P.O., CHELLAMCODU MURI, NEDUMANGAD. ADV. SRI.K.B.PRADEEP THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2894/2001 IN AS. NO.476/2000 DISMISSED 11/10/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss 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