IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
OP(C) NO. 1168 OF 2017
AGAINST THE ORDER/JUDGMENT IN OS 14/2013 OF MUNSIFF COURT,ALUVA
PETITIONERS:
1 GOPALAKRISHNAN EMBRANTHIRI
AGED 59 YEARS,
S/O.LATE VISWANATHAN EMBRANTHIRI,
KIDANGASSERRY MADHOM, PURAYAR,
CHOWWARA, ALUVA TALUK.
2 RADHA GOPALAKRISHNAN ,
AGED 59 YEARS,
W/O LATE GOPALAKRISHNAN EMBRANTHIRI,
KIDANGASSERRY MADHOM, PURAYAR,
CHOWWARA 683571, ALUVA TALUK, ERNAKULAM DISTRICT
3 VISWANATH K G,
AGED 33 YEARS,
S/O LATE GOPALAKRISHNAN EMBRANTHIRI,
KIDANGASSERRY MADHOM, PURAYAR,
CHOWWARA 683571, ALUVA TALUK,
ERNAKULAM DISTRICT
4 VISHNUNATH K G,
AGED 29 YEARS,
S/O LATE GOPALAKRISHNAN EMBRANTHIRI,
KIDANGASSERRY MADHOM, PURAYAR,
CHOWWARA 683571, ALUVA TALUK,
ERNAKULAM DISTRICT
(ADDITIONAL PETITIONERS 2 TO 4 ARE IMPLEADED AS THE LRS
OF DECEASED SOLE PETITIONER VIDE ORDER DATED 21.06.2022
IN I.A.NO:1/2022)
BY ADVS.
SRI.V.RAJENDRAN (PERUMBAVOOR)
SRI.GEORGE VARGHESE KIZHAKKAMBALAM
RESPONDENTS:
1 THRIPURAYAR MAHADEVAKSHETRA SAMRAKSHANA SAMITHI
REG. NO.33/IV/2012, PURAYAR, CHOWWARA-683571,
REPRESENTED BY ITS SECRETARY.
2 SRI.THRIPURAYAR MAHADEVAN
REPRESENTED BY PARAMESWARAN NAMBOOTHIRIPAD @
KUNJIKUTTAN, VELAMANA,
OORANMA THURUTH, PURAYAR, CHOWWARA-683571.
O.P(C) No.1168 of 2017
2
3 M.K.SIVARAMAN,
AGED 56 YEARS,
S/O.KRISHNAN NAIR,
VARIKKATTU HOUSE,
CHOWWARA P.O.-683571,
SREEMOOLANAGARAM.
4 SAJEESH SATYAN,
AGED 35 YEARS,
S/O.SATYAN,
UNNEERAKATHOOTT HOUSE,
CHOWWARA P.O.-683571,
SREEMOOLANAGARAM.
BY ADV SRI.B.JAYASANKAR
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(C) No.1168 of 2017
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JUDGMENT
Dated this the 23rd day of June, 2022 The original petition is filed to set aside the order in I.A No.378/2017 in O.S No.14/2013 (Ext.P5) of the Court of the Munsiff, Aluva. During the pendency of this original petition, the original petitioner died and his legal representatives have been impleaded as additional petitioners 2 to 4. Nevertheless, the parties are referred to as petitioner and respondents, for the sake of convenience.
2. The original petitioner's case, in brief, in the memorandum of original petition is that, he is the plaintiff in the above suit, which is filed against the respondents before the above court, seeking a decree for the recovery of the property. The property is situated on the southern side of the plaint schedule property belonging to the 2nd respondent diety. The administration of the 2 nd O.P(C) No.1168 of 2017 4 respondent is carried out by the 1 st respondent registered society. The respondents 3 and 4 and their associates have attempted to construct a compound wall, trespassing into the plaint schedule property. Even though the attempt was obstructed by the petitioner, the respondents have threatened the petitioner. The petitioner now apprehends that respondents have trespassed into his property. Thus, the suit. The respondents have entered appearance in the suit and filed their written statement. The petitioner then applied for the appointment of an Advocate Commissioner, which was allowed and Exts.P1 commission report and P2 survey plan have been placed on record. While so, certain mediators intervened and the possibilities of a settlement was explored. It was decided that a joint inspection be conducted. Then, the parties had certain doubts regarding Ext.P2 plan. Accordingly, the surveyor was requested to be present at the property, but the boundaries could not be measured O.P(C) No.1168 of 2017 5 and identified as per Ext.P2. Therefore, the petitioner has filed Ext.P3 application, to remit commission report and survey plan. The same was not objected by the respondents. The petitioner also filed Ext.P4 work memo. Nonetheless, the court below dismissed the application by Ext.P5 order on the ground that no steps were taken to examine the commissioner and surveyor. Ext.P5 is erroneous and wrong. Hence, the original petition.
3. Heard Sri.Rajesh.N, the learned counsel appearing for the petitioners and Sri.B.Jayasankar, the learned counsel appearing for the respondents.
4. The point that arises for consideration in this original petition is whether there is any error in Ext.P5 order passed by the court below.
5. The fact that the parties could not identify the property based on Ext.P2 plan is not disputed by both sides. Therefore, necessarily, there is some error in Exts.P1 and P2. In the best interest of both sides and to do complete justice, it is expedient that O.P(C) No.1168 of 2017 6 new Advocate Commissioner is appointed and the inspection is carried out.
6. The learned counsel appearing for the respondents submits that respondents may also be given an opportunity to file their work memo before the Advocate Commissioner, so that all matters also can be elucidated. It is trite, that identity of the property is imperative in suits for injunctions and consequential reliefs. Thus, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, the original petition is allowed as follows:-
(i) Ext.P5 order is set aside.
(ii) Exts.P1 commission report and P2 survey plan are also set aside
(iii) Ext.P3 application is allowed by directing the court below to appoint a new Advocate Commissioner, who shall elucidate the matters as sought for in Ext.P3 application and the work memo O.P(C) No.1168 of 2017 7 filed by both sides, with the assistance of the present Taluk Surveyor.
(iv) The petitioners and the respondents would be at liberty to file their respective work memos before the Advocate Commissioner.
(v) The remuneration of the Advocate Commissioner shall be fixed by the court below.
(vi) On a consideration that suit is of the year 2013, the court below shall make every endeavour to decide the suit in accordance with law, as expeditiously as possible.
The original petition is ordered accordingly.
Sd/-
C.S.DIAS Judge NR/23/06/2022 O.P(C) No.1168 of 2017 8 APPENDIX PETITIONER EXHIBITS EXHIBIT P1- TRUE COPY OF COMMISSION REPORT FILED BY ADVOCATE COMMISSIONER IN I.A.395/13 IN O.S.14/13 ON 22/07/2016.
EXHIBIT P2- TRUE COPY OF SURVEY PLAN PRODUCED ALONG WITH EXHIBIT P1.
EXHIBIT P3- TRUE COPY OF PETITION FILED BY PETITIONER AS I.A.378/17 IN O.S.14/13 DATED 27/02/2017. EXHIBIT P4- TRUE COPY OF WORK MEMO FILED BY RESPONDENTS 3 & 4 IN I.A.378/17 IN O.S.14/13 ON 06/03/2017. EXHIBIT P5- TRUE COPY OF ORDER IN I.A.378/17 IN O.S.14/13 DATED 16/03/2017.
//TRUE COPY// PA TO JUDGE