K.K.Abraham vs K.John Abraham

Kerala High Court

K.K.Abraham vs K.John Abraham on 21 May, 2024

Author: Kauser Edappagath

Bench: Kauser Edappagath

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                    OP(C) NO. 556 OF 2016
  AGAINST THE ORDER/JUDGMENT DATED IN OS NO.128 OF 2001 OF
                  MUNSIFF COURT, THIRUVALLA
PETITIONER/COUNTER PETITIONER:
          K.K.ABRAHAM
          AGED 47 YEARS, S/O.KURUVILLA,
          KAYAPPURATHU VEEDU, KAVUMBHAGOM MURI,
          KAVUMBHAGAOM VILLAGE,
          THIRUVALLA, PATHANAMTHITTA

         BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)
RESPONDENTS/PETITIONER/COUNTER PETITIONER 2 & 3:

    1    K.JOHN ABRAHAM
         AGED 47 YEARS, S/O.JOHN KAYAPPURATHU VEEDU,
         KAVUMBHAGOM MURI, KAVUMBHAGOM VILLAGE,
         THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN 686519
    2    THOMAS JOHN
         AGED 35 YEARS, S/O.JOHN KAYAPPURATHUVEEDU,
         KAVUMBHAGOM MURI, KAVUMBHAGOM VILLAGE,
         THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN 686519
    3    K J ABAHAM
         AGED 52 YEARS, S/O.JOHN,
         KAYAPPURATHUVEEDU, KAVUMBHAGOM MURI,
         KAVUMBHAGOM VILLAGE, THIRUVALLA,
         PATHANAMTHITTA DISTRICT, PIN 686519
    4    MERCY ABRAHAM
         KAYAPPURATH HOUSE, KUTTOMPEROOR P.O,
         MANNAR, ALAPPUZHA DISTRICT. PIN- 689622
         (IMPLEADED AS PER ORDER DATED 21.05.2024
         IN I.A.NO.1/2022)
         BY ADVS.
         SRI.ARUN THOMAS
         K.N.RADHAKRISHNAN (THIRUVALLA)- R4
         SRI.JENNIS STEPHEN
         SRI.SANTHOSH MATHEW
         SRI.SATHISH NINAN

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 O.P.(C) No. 556/2016


                                          ..2..


                              JUDGMENT

Exhibits P3 and P4 orders passed by the Munsiff Court, Thiruvalla are under challenge in this original petition.

2. The suit is one for declaration of the easement right and for permanent prohibitory injunction. The petitioner herein is the 1 st defendant and the respondents are the plaintiff and defendants 2 and 3. Initially, the suit was decreed and it was challenged before the 1 st Appellate Court. The appeal was partly allowed and remanded back to the Trial Court for fresh disposal. In the remand order, the plaintiff was directed to take steps to appoint an Advocate Commissioner to measure out the properties with the assistance of the Surveyor to find out whether any portion of item Nos.1 to 3 of the plaint schedule were dedicated to create item No.5 pathway.

3. After remand, the plaintiff filed Ext.P2 application to appoint an Advocate Commissioner. The learned Munsiff allowed Ext.P2 application as per Ext.P3 order. Thereafter, the petitioner filed I.A.No.2488/2015 to review the order in Ext.P3. The said application was also dismissed as per Ext.P4 order. It is challenging Exts.P3 and P4 orders, this original petition has been filed.

4. I have heard both sides.

..3..

5. In the remand order, it was observed that the plaintiff shall take steps to appoint an Advocate Commissioner to measure out the properties with the assistance of the Surveyor to ascertain whether any portion of plaint item Nos.1 to 3 were dedicated to create item No.5 pathway. The grievance of the petitioner/1st defendant is that, in the commission application, the plaintiff wanted to measure the plaint schedule items on the basis of the commission report filed in another case. The learned Munsiff found that considering the facts and circumstances of the case, such a measurement is necessary. The direction in the remand order was to measure the properties with the assistance of a Surveyor for the purpose of ascertaining whether any portion of items Nos.1 to 3 were dedicated to create item No.5 pathway. There is no observation that the properties should be measured in a particular manner. It is up to the trial court to decide in what manner the properties have to be measured. Moreover, measuring the property as sought for by the plaintiff would not in any way cause prejudice to the 1st defendant.

I see no illegality or impropriety in the impugned order. According, this origional petition is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE APA O.P.(C) No. 556/2016 ..4..

APPENDIX OF OP(C) 556/2016 PETITIONER EXHIBITS EXHIBIT P1 COPY OF JUDGMENTS IN AS NO 36/2005 OF THE SUBORDINATE JUDGES COURT, THIRUVALLA EXHIBIT P2 COPY OF IA 1966/2015 IN OS 158/2001 OF MUNSIFF COURT, THIRUVALLA EXHIBIT P3 COPY OF ORDER IA 1966/2015 IN OS NO 158/2001 OF MUNSIFF COURT THIRUVALLA DTD 25/7/2015 EXHIBIT P4 COPY OF ORDER IA 2488/2015 IN OS NO 158/2001 OF MUNSIFF COURT THIRUVALLA DTD 6/1/2016