C.P. SARASWATHY Vs. C.P. VENUGOPAL

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.