IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 5TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
OP(C).No.11 OF 2021
AGAINST THE ORDER IN IA 2/2020 IN OS 232/2014 DATED 10-12-2020
OF MUNSIFF COURT, HOSDRUG
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PETITIONER/APPLICANT/DEFENDANT:
MARUTHUKUNNEL GEORGE CYRIAC
AGED 61 YEARS
S/O. KURUVILA, RESIDING AT MUNAYAMKUNNU, KANNIVAYAL
(PO), KASARAGOD DISTRICT.
BY ADVS.
SHRI.JAWAHAR JOSE
SMT.CISSY MATHEWS
SRI.JAISON ANTONY
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 KAVIYIL ELSAMMA CHERIYAN
AGED 63 YEARS
W/O. CHERIYAN, PULINGOM AMSAM AND DESOM, EDAVARAMBA
(P.O) THALIPARAMBA TALUK,
KANNUR DISTRICT PIN 670 511
2 ELAVUKUNNEL SOPHIYAMMA MATHEW,
AGED 56 YEARS
W/O. MATHEW, AALAKKOD AMSAM, ARANGAM DESOM,
THALIPARAMBA TALUK, KANNUR DISTRICT, PIN 670 511
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O. P. (C) No.11 of 2021
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Dated this the 5th day of January, 2021
JUDGMENT
Dismissal of an application seeking to set aside the Commissioner's Report and Plan or to remit the same back to the Commissioner, is under challenge by the defendant-petitioner in the application.
2. The suit is one for partition. The defendant raised a plea of ouster. Additional issue No.6 raised by the court reads thus:-
"Whether the title of any of the plaintiffs over the plaint schedule properties are lost by ouster, adverse possession and limitation ?"
3. According to the petitioner-defendant, he had submitted a work memo requiring the Commissioner to ascertain the age of the trees in the property, but the same was not reported by the Commissioner. In addition, though the Commissioner was also required to note the various O. P. (C) No.11 of 2021 -: 2 :- structures/improvements in the property and also its value, the same has also not been reported by the Commissioner, grieves the petitioner.
4. Sri.Jawahar Jose, learned counsel for the petitioner-defendant would submit that though the Commissioner has reported that about 1100 rubber trees are planted in the property along with Teak and Mahagani trees, its age have not been stated. The age of the trees has much relevance with respect to the defendant's plea of ouster, submits the learned counsel. It is to be noticed that even according to the defendant, the rubber trees were re-planted in the year 2004 or 2005 which is within 12 years from the suit. Therefore, the age as such may not be of any significance. It is open for the petitioner-defendant to substantiate his plea of ouster with other materials. The Commissioner's report need not be remitted for the said purpose.
5. As regards the request for remission of the report to ascertain the value of the improvements, as rightly noticed by the trial court, it is something to be considered in the final decree O. P. (C) No.11 of 2021 -: 3 :- proceedings. If the plea of ouster is accepted, the said course will not be necessary at all.
The order impugned suffers from no illegality or error of jurisdiction warranting interference in exercise of powers in supervisory jurisdiction. The Original Petition fails and is accordingly dismissed.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge OP(C).No.11 OF 2021 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ISSUES AND ADDITIONAL ISSUES FRAMED BY THE COURT IN O.S NO. 232/2014 AS PER ORDER DATED 20-02-2015 AND 1-3-2016 EXHIBIT P2 TRUE COPY OF THE WORK MEMO FILED BY THE PETITIONER BEFORE THE COURT ON 28-09-2017 EXHIBIT P3 TRUE COPY OF THE REPORT AND PLAN OF THE ADVOCATES COMMISSIONER DATED 17-08-2019 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 10-12-2020 IN I.A NO. 2/2020 IN O.S NO. 232/2014 ON THE FILES OF THE MUNSIFF'S COURT, HOSDURG.
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