High Court of KeralaSingle Judge2022-03-03Appeals allowed in part.

FAO (RO) Nos.273 of 2016 and 47 of 2017

Case / Petition Number:FAO (RO) Nos. 273 of 2016 and 47 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2022-03-03
Court Decision / Holding: The appeals are allowed in part. The remand is permitted but only for a limited purpose: to ascertain whether Ext.C1(a) was prepared based on the subdivision/survey plan and to verify the boundary lines on the basis of the subdivision plan. The First Appellate Court should obtain a certified copy of the subdivision plan (survey plan) under Order 41 Rule 27 CPC and decide the case accordingly. The parties must appear on 30/03/2022, and the appeal must be disposed of within three months from that date. The court also holds that there is no merit in the adverse possession claim and that the appellants cannot claim title over sub-division Nos. 2 and 3 (their lands lie in sub-division No.4).
Final Disposition: Appeals allowed in part.

Parties to the Case

Appellants / Petitioners

K.J.Alexander
Jose Joseph

Respondents

Mathew Jacob
Benson Jacob @ Joseph
Mini Benson Jacob
Alaxander
Elsamma Jacob
Benny John @ Thomas
JosHY John

Legal Representation & Advocates

Counsels for Petitioners

• Sri.G.Unnikrishnan
• Sri.M.Jayakrishnan

Counsels for Respondents

• Sri.S.ANANTHAKRISHNAN
• Sri.P.B.KRISHNAN
• Sri.P.M.NEELAKANDAN
• Sri.SABU GEORGE
• Sri.P.B.SUBRAMANYAN

Case Synopsis & Summary

This is a Kerala High Court appeal (FAO (RO) Nos. 273 of 2016 and 47 of 2017) arising from remand orders in a boundary dispute and possession suit relating to certain subdivided parcels covered by a 1975 partition deed (Ext.A1). The appellants/defendants (K.J. Alexander and Jose Joseph) challenge the remand ordered by the IV Addl. District Court, Thodupuzha, directing further examination of Ext.C1(a) survey boundary plan prepared to reflect subdivision lines and the line between sub-divisions. The respondents/plaintiffs assert that the plan and its dark line indicate survey boundaries, with red-line additions drawn beyond proper authority; they contend remand is necessary to determine whether Ext.C1(a) was based on a proper subdivision/survey plan. The court notes the partitioned properties and the lack of overlap with the appellants’ lands, emphasizes the need for an open, non-secret adverse possession, and relies on the settled position in Gopalakrishnan v. Ponnappan (2021) to caution against routine remand without merits analysis. It ultimately remands for a narrow, merits-based inquiry: verify Ext.C1(a) against a subdivision/survey plan and obtain a certified subdivision plan under Order 41 Rule 27 CPC, with directions to dispose within three months, while holding there is no merit in adverse possession claims.”

Provisions of Law Cited

Order 41 Rule 27 CPC

Legal Doctrines & Maxims

Adverse possession must be open and give notice; no possession in secrecy
Subdivision plans, when available, have the same effect as survey plans and must be treated accordingly
Remand should not be ordered in a routine manner without addressing merits and demerits of the case

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contend that the remand order is improper and routine, seeking a merits-based resolution rather than further remand. They argue Ext.C1(a) reflects subdivision boundaries and should be treated as drawing from a subdivision plan (which has the effect of a survey plan). They challenge the need for remand to re-examine Ext.C1(a) and urge the court to pass a decree in accordance with established boundaries per Ext.A1, citing the settled principle in Gopalakrishnan v. Ponnappan (2021) (5 KHC 548). They contend adverse possession claims lack open animus and merit since there was no openly exercised act giving notice to interested parties. They request the appellate court to decide the matter without unnecessary remand while ensuring proper evidence from subdivision/survey plans.

Contentions of Respondents

The respondents argue that a remand is necessary to determine the accuracy of Ext.C1(a) against the subdivision/survey plan, particularly to resolve any encroachment into adjacent sub-divisions (2/3 vs 4) and the validity of the red-line demarcations. They rely on the subdivision plan’s evidentiary value and insist Ext.C1(a) must be tested against the survey record. They contend the lack of explicit connection between the plan and survey records requires further inspection, including obtaining a certified copy of the subdivision plan under Order 41 Rule 27 CPC, to enable a decree consistent with law. They also press the adverse possession claim as a matter needing adjudication, subject to proper notice.”},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Gopalakrishnan and another v. Ponnappan and others	2021 (5) KHC 548	Positive	Cited to support the proposition that remand should not be ordered routinely without addressing merits and that settled legal position governs boundary/survey plan considerations.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 3[rd] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 FAO (RO) NO. 273 OF 2016 AGAINST THE JUDGMENT AND DECREE DATED 14.10.2016 IN AS No.6/2015 OF IV ADDITIONAL DISTRICT COURT, THODUPUZHA JUDGMENT ADN DECREE DATED 31.10.2014 IN OS No.67/2013 OF MUNSIFF ## COURT, THODUPUZHA ## APPELLANTS/RESPONDENTS 5 AND 6/DEFENDANTS 5 AND 6: 1 K.J.ALEXANDER, AGED 62 YEARS, S/o JOSEPH, KUNNAMKOTTU HOUSE, THATTARATHATTA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. 2 JOSE JOSEPH, S/o JOSEPH, AGED 63 YEARS, ALAPPATTU HOUSE, KOLANI KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK, REPRESENTED BY P.A HOLDER JOSEPH., S/O OUSEPH, DO- DO. BY ADVS.SRI.G.UNNIKRISHNAN SRI.M.JAYAKRISHNAN ## RESPONDENTS/APPELLANT, RESPONDENTS 1 TO 4, 7, 8/PLAINTIFF, DEFENDANTS 1 TO 4, 7, 8: - 1 MATHEW JACOB, AGED ABOUT 57 YEARS, S/o CHACKO, THAZHATHEPARAMBIL HOUSE, THALAMATTAM KARA, THODUPZHA VILLAGE, THODUPUZHA TALUK – 685 586. 2 BENSON JACOB @ JOSEPH, AGED ABOUT 59 YEARS, S/o CHACKO, -DO-DO-. 3 MINI BENSON JACOB, AGED ABOUT 53 YEARS, W/o BENSON JACOB @ JOSEPH, -DO-DO. 4 ALAXANDER, AGED ABOUT 67 YEARS, S/o CHACKO, -DO-DO-. 5 ELSAMMA JACOB, AGED ABOUT 65 YEARS, W/o JACOB, -DO-DO-. FAO (RO) Nos.273 of 2016 and 47 of 2017 2 6 BENNY JOHN @ THOMAS, AGED ABOUT 47 YEARS, S/o ULAHANNAN, KANJIRATHINKAL HOUSE, KOLANI KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK – 685 608 7 JOSHY JOHN, AGED ABOUT 43 YEARS, S/o ULAHANNAN, -DO-DO-. R1 BY ADVS. SRI.S.ANANTHAKRISHNAN SRI. N.K.SUBRAMANIAN R2,R3, R5, R6 & R7 BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 03.03.2022, ALONG WITH FAO (RO).47/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) Nos.273 of 2016 and 47 of 2017 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 3[rd] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 FAO (RO) NO. 47 OF 2017 AGAINST THE JUDGMENT AND DECREE DATED 14.10.2016 IN AS No.6/2015 OF IV ADDITIONAL DISTRICT COURT, THODUPUZHA JUDGMENT AND DECREE DATED 31.10.2014 IN OS No.67/2013 OF MUNSIFF COURT, THODUPUZHA APPELLANTS IN FAO/RESPONDENTS 1,2,4,7 & 8 IN A.S./DEFENDANTS 1,2,4,7 & 8 IN SUIT: 1 BENSON JACOB @ JOSEPH, S/o CHACKO, AGED 60, RESIDING AT THAZHATHEPARAMBIL HOUSE, THALAMATTAM KARA, THODUPUZHA VILLAGE, THODUPUZHA, PIN-685584. 2 MINI BENSON JOSEPH, W/o BENSON JACOB @ JOSEPH, AGED 54, RESIDING AT THAZHATHEPARAMBIL HOUSE, THALAMATTAM KARA, THODUPUZHA VILLAGE, THODUPUZHA, PIN-685584. 3 ELSAMMA JACOB, W/o JACOB, AGED 66, RESIDING AT THAZHATHEPARAMBIL HOUSE, THALAMATTAM KARA, THODUPUZHA VILLAGE, THODUPUZHA, PIN-685584. 4 BENNY JOHN @ THOMAS, S/o ULAHANNAN, AGED 48, KANJIRATHINKAL HOUSE, KOLANI KARA, THODUPUZHA VILLAGE & TALUK, PIN-685 608. 5 JOSHY JOHN, S/o ULAHANNAN, AGED 45, KANJIRATHINKAL HOUSE, KOLANI KARA, THODUPUZHA VILLAGE & TALUK, PIN-685 608. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN FAO (RO) Nos.273 of 2016 and 47 of 2017 4 ## RESPONDENTS IN FAO / APPELLANT & RESPONDENTS 3,5 & 6 IN AS/PLAINTIFF AND DEFENDANTS 3, 5 & 6 IN THE SUIT: 1 MATHEW JACOB, S/o CHACKO, AGED 58, RESIDING AT THAZHATHEPARAMBIL HOUSE, THALAMATTAM KARA, THODUPUZHA VILLAGE, THODUPUZHA, PIN-685584. 2 ALAXANDER, S/o CHACKO, AGED 69, RESIDING AT THAZHATHEPARAMBIL HOUSE, THALAMATTAM KARA, THODUPUZHA VILLAGE, THODUPUZHA, PIN-685584. 3 K.J.ALAXANDER, S/O JOSEPH, AGED 63, RESIDING AT KUNNAMKOTTU HOUSE, THALAMATTAM KARA, THODUPUZHA VILLAGE & TALUK, PIN-685584. 4 JOSE JOSEPH, S/o JOSEPH, AGED 33, RESIDING AT ALAPPATTU HOUSE, KOLANI KARA, THODUPUZHA VILLAGE & TALUK, PIN-685 608. R1 BY ADV. S.ANANTHAKRISHNAN R3 & R4 BY ADVS. SRI.M.JAYAKRISHNAN SRI.G.UNNIKRISHNAN THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 03.03.2022, ALONG WITH FAO (RO).273/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) Nos.273 of 2016 and 47 of 2017 5 ## **JUDGMENT** Aggrieved by the order of remand of the first appellate court, the defendants 1, 2, 4, 7 and 8 came up in appeal. The suit is one for fixation of boundary and recovery of possession of portion of property, if any, found in possession of the defendants. The dispute is pertaining to two adjoining properties covered by a mother document, partition deed dated 28.05.1975, Ext.A1, in which the 'G' schedule item No.2 property was allotted to the share of a minor, the plaintiff herein. He was aged 15 years at that time. There is no dispute with respect to the due execution of the mother document, Ext.A1 partition deed of the year 1975. The plaintiff claims 'G' schedule item No.2 property comprised in Sy.No.590/3 having an extent of 61 cents, 590/2A having an extent of 28 cents and 590/2B-1 having an extent of 13 cents. It is the admitted case that none of the defendants who came up in appeal have property comprised in Sy.No.590/2 or 590/3, more specifically in sub FAO (RO) Nos.273 of 2016 and 47 of 2017 6 division No.2 or 3. Their property is admittedly situated and comprised in sub division No.4. The Commissioner who prepared Ext.C1(a) plan had located various sub-divisions based on the sub-division plan by drawing dark line with the width indicating survey division line. Accordingly, sub-division No.2 and 3 were also located based on the subdivision plan. The dark line drawn with sufficient width would indicate that it is the sub-division line or the survey line of the property as per survey records. It is thereafter by using red line, certain divisions were made by the Commissioner in the plan drawn without any authority and that too against the survey record (survey plan). Hence, the abovesaid divisions made by the Commissioner by using red line encroaching portions of different survey sub-divisions cannot be sustained. In Ext.A1 partition deed of the year 1975, the properties were referred with their respective sub-division number. The plan, Ext.C1(a) would show that a sub-division plan was available which was used for drawing the said plan. Hence, there cannot be any overlapping between the properties comprised in various sub-division numbers. When sub-division plan is available, FAO (RO) Nos.273 of 2016 and 47 of 2017 7 it is equally good as survey plan and it will have all the effect of survey plan. In fact, it is a survey plan in all respect showing different sub-divisions in a particular survey. It was overlooked by the trial court and the first appellate court. It is not permissible to order remand in a routine way without attending the merits and demerits of the case in whole. The legal position has been settled by this Court in **Gopalakrishnan and another v. Ponnappan and others [2021 (5) KHC 548].** The defendants cannot claim any title over the property in sub-division Nos. 2 and 3, since their property is situated in sub-division No.4. 2. Pertaining to the question of adverse possession with respect to adjoining properties, it should be capable of giving notice of the factum of adverse animus to all interested persons, since there cannot be any adverse possession in secrecy. With respect to adjoining properties, there should be an act exercising the adverse animus over the property capable of giving notice and it should be open. No construction or act of adverse possession is seen exercised openly so as to give notice. FAO (RO) Nos.273 of 2016 and 47 of 2017 8 Hence, there is no merits in the claim of adverse possession. 3. It was argued by the learned counsel that apart from the dark line used to draw Ext.C1(a) plan, no other evidence was adduced to show that it was prepared based on the sub-division plan. The abovesaid aspect was not elucidated at the time of examination of Commissioner and the Surveyor, who had drawn the plan. Hence, a remand of the matter for the said purpose to the first appellate court cannot be avoided. It is made clear that the remand is only for the purpose of ascertaining whether Ext.C1(a) plan was prepared based on the survey plan having subdivisions (sub-division survey plan) and to ascertain whether the dark line was drawn based on the survey plan. The first appellate court shall call for a certified copy of the sub-division plan (survey plan) under Order 41 Rule 27 C.P.C. on the application of either of the parties so as to ascertain the correctness of the survey boundary line drawn by using dark line between the sub-divisions and to pass a decree in accordance with the law in force. The parties shall appear before the first appellate court on FAO (RO) Nos.273 of 2016 and 47 of 2017 9 30/03/2022. The appeal shall be disposed of within three months from the date of appearance of the parties. Both the appeals are allowed in part accordingly. Sd/- **P.SOMARAJAN** **JUDGE** DMR/- FAO (RO) Nos.273 of 2016 and 47 of 2017 10 ## **APPENDIX OF FAO (RO) No.47 OF 2017** ## APPELLANTS ANNEXURE: ANNEXURE A : TRUE COPY OF EXT.C1(a) SURVEY PLAN DATED 22.3.2014. **==> picture [109 x 10] intentionally omitted <==** P.A. TO JUDGE