T.P. PREMSAGAR v. Sub Court, Kochi and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2021-10-04
Court Decision / Holding: All the appeals are dismissed; no costs. The High Court directed an open remand to the trial court to address all issues, including location and fixation of boundaries, and to dispose of the matter within nine months from appearance, with permission for plaint amendments if required.
Final Disposition: Appeals dismissed; remand opened to trial court with nine-month timeline for disposal; no costs.

Parties to the Case

Appellants / Petitioners

T.P.PREMSAGAR

Respondents

T.P.Subhashini
T.R.Sabu
The Manager, Canara Bank Golden Jubilee Staff Welfare Fund, Cochin
The Manager, Canara Bank, Cochin

Legal Representation & Advocates

Counsels for Petitioners

• B. Krishna Mani
• D. Kesavan Nair
• N. V. Sandhya

Counsels for Respondents

• P. R. Reena
• Renjith Thampan

Case Synopsis & Summary

This is a Kerala High Court appellate proceeding (FAO Nos.121, 122 & 123 of 2013) arising from three suits (O.S.395/1997, O.S.494/1997, O.S.438/2003) challenging three purchase certificates issued by the Land Tribunal in favour of adjoining plaintiffs under kudikidappu. The First Appellate Court had remanded the matter to the trial court for locating the properties based on the title documents and survey records, as there were overlaps in the extent of land and boundaries not fixed by the survey. The appellant contended against remand. The High Court, citing Francis Assissi v. Sr. Breesiya (2017(1) KLT 1041), held that there is no scope for remitting the Commissioner's report, but a second commission is permissible if the earlier report is insufficient to resolve the dispute. Since the disputes involve adjoining parcels originally owned by an association under kudikidappu to multiple persons, the extent of property must be anchored to the documents of title, the purchase certificates, and survey records. The court concluded that the remand order requires no interference and directed an open remand to the trial court to address all issues, allowing amendments to plaints if needed, with a nine-month time frame for disposal. All appeals were dismissed, with no costs.

Legal Doctrines & Maxims

Francis Assissi v. Sr. Breesiya (2017 (1) KLT 1041) — principle that a second Commissioner can be appointed when the first report is insufficient; remand is permissible in such circumstances.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued against the remand direction, contending that the previous Commissioner's report should suffice and that the location and fixation of boundaries should rely on the existing documents of title and survey records, with strict adherence to the earlier findings. They pressed that remand delays the resolution and undermines the certainty of title among adjoining purchasers.

Contentions of Respondents

The respondents urged that locating the extents and fixing boundaries are essential to resolve overlaps and to determine the properties covered by the certificates. They relied on the survey records and title documents to accurately map boundaries and sustain the certificates, and supported the appellate remand methodology as appropriate when the initial report is inadequate.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Francis Assissi v. Sr. Breesiya	2017 (1) KLT 1041	Positive	Lays down that remand can be followed by a fresh Commission when the initial report is inadequate; the present judgment applies this doctrine to permit an open remand to resolve boundary issues.

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 MONDAY, THE 4[th] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943 **==> picture [138 x 10] intentionally omitted <==** AGAINST THE COMMON JUDGMENT DATED 31.01.2013 IN AS No.30/2008 OF SUB COURT, KOCHI, ERNAKULAM COMMON JUDGMENT DATED 28.02.2008 IN O.S.No. 395/1997 OF MUNSIFF COURT, KOCHI ## APPELLANT/1st RESPONDENT/PLAINTIFF: T.P.PREMSAGAR, S/o LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29. BY ADVS. SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR SMT.N.V.SANDHYA RESPONDENTS/APPELLANTS 1 TO 5/DEFENDANTS 1 TO 5/2nd RESPONDENT/6 th DEFENDANT: 1 T.P.SUBHASHINI, W/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29. 2 P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29. 3 T.R.SABU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29. 4 T.R.SANU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29. 5 T.R.SAJU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI PO, COCHIN-29. FAO Nos.121, 122 & 123 of 2013 2 6 K.R.RAJEEVAN, S/o RAVINDRAN, KALLIKUDAYIL HOUSE, PULLAR DESOM ROAD, PALLURUTHY, KOCHI -6. R1-R5 BY ADV SMT.P.R.REENA THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 04.10.2021, ALONG WITH FAO.122/2013, 123/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO Nos.121, 122 & 123 of 2013 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 4[th] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943 FAO NO. 122 OF 2013 AGAINST THE COMMON JUDGMENT DATED 31.01.2013 IN AS No.63/2008 OF SUB COURT, KOCHI, ERNAKULAM COMMON JUDGMENT DATED 28.02.2008 IN OS No.494/1997 OF MUNSIFF COURT, KOCHI APPELLANT/1st RESPONDENT/1 st DEFENDANT: T.P.PREMSAGAR, S/o LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29. BY ADVS. SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR SMT.N.V.SANDHYA RESPONDENTS/APPELLANTS/PLAINTIFFS 1 AND 3/RESPONDENTS 2 AND 3/DEFENDANTS 2 AND 3: 1 T.P.SUBHASHINI, W/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29. 2 T.R.SABU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29. 3 THE MANAGER, CANARA BANK GOLDEN JUBILEE STAFF WELFARE FUND, COCHIN-2. 4 THE MANAGER, CANARA BANK, COCHIN-2. FAO Nos.121, 122 & 123 of 2013 4 R1 & R2 BY ADVS.SMT.P.R.REENA SRI.RENJITH THAMPAN SR. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 04.10.2021, ALONG WITH FAO.121/2013 AND FAO 123/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO Nos.121, 122 & 123 of 2013 5 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 4[th] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943 FAO NO. 123 OF 2013 AGAINST THE COMMON JUDGMENT DATED 31.01.2013 IN AS No. 64/2008 OF SUB COURT, KOCHI, ERNAKULAM COMMON JUDGMENT DATED 28.02.2008 IN O.S.No.438/2003 OF MUNSIFF COURT, KOCHI ## APPELLANT/RESPONDENT/DEFENDANT: T.P.PREMSAGAR, S/o LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29. BY ADVS. SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR SMT.N.V.SANDHYA ## RESPONDENT/APPELLANT/ADDITIONAL PLAINTIFF No.2: T.R.SABU, S/o P.K.RAVEENDRAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., COCHIN-29. BY ADVS. SMT.P.R.REENA SRI.RENJITH THAMPAN SR. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 04.10.2021, ALONG WITH FAO.121/2013 & FAO 122/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO Nos.121, 122 & 123 of 2013 6 ## **COMMON JUDGMENT** Based on the three purchase certificates alleged to have been issued by the Land Tribunal respectively in favour of the three plaintiffs in three suits and the decree thereof were brought under challenge before the First Appellate Court mainly on the reason that there are some overlapping with respect to the extent of property covered by the purchase certificates and its boundaries were not fixed based on the document of title and the survey records. As such, the report of the Survey Commissioner was remitted back by the First Appellate Court for the purpose of enabling the court below to locate the property based on the document of title and survey records. That order of remand is under challenge by the plaintiff in O.S.No.395/1997, who is the first defendant and defendant in O.S.Nos.494/1997 and 438/2003 respectively. In the trial court, a survey commission was issued. But, the properties were not located based on the survey records and the FAO Nos.121, 122 & 123 of 2013 7 respective purchase certificates. Hence, the First Appellate Court directed the trial court to remit back the report already submitted. This Court in **Francis Assissi v. Sr. Breesiya [2017 (1) KLT 1041]** had laid down the legal position that there is no scope for remitting the Commissioner's report, but a second commission is permissible when the earlier Commissioner's report found to be not sufficient to resolve the dispute involved and hence a fresh Commission can be issued. Since it is pertaining to adjoining properties originally owned by an association given under kudikidappu to various persons including the respective plaintiffs herein, the extent of property given under the certificates has to be located in reference to the document of title, the respective purchase certificates and the survey records. Hence, the order of remand requires no interference by this court. It is made clear that there will be an open remand to the trial court to address all the issues involved in the suit including the location and fixation of the boundaries, for which the parties may be permitted to amend their respective plaints and the reliefs sought therein, if so required and to FAO Nos.121, 122 & 123 of 2013 8 dispose of the matter within a time schedule of nine months from the date of appearance of the parties. The parties shall appear before the trial court on 22.10.2021. All the appeals are dismissed accordingly. No costs. **Sd/-** **P.SOMARAJAN** **JUDGE** DMR/-