K.K.Dinesh @ Unni vs Sunil
2021 Latest Caselaw 16230 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
            THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                  OP(C) NO. 317 OF 2021
    OS 286/2019 OF ADDITIONAL MUNSIFF COURT, CHERTHALA,
                        ALAPPUZHA
PETITIONER/S:

         K.K.DINESH @ UNNI
         AGED 59 YEARS
         S/O LATE K.K.KRISHNA PILLAI,ASHA NIVAS,
         AROOR MURI,AROOR VILLAGE,CHERTHALA TALUK.
         BY ADVS.
         S.SUDHISH KUMAR
         SRI.PAUL ANTONY MANIAMKOT


RESPONDENT/S:

         SUNIL
         S/O CHELLAPPAN,KOOTTALIL,AROOR MURI,
         AROOR VILLAGE,CHERTHALA TALUK,PIN-688534.
         BY ADVS.
         SRI.V.N.MADHUSUDANAN
         SMT.R.UDAYA JYOTHI
         SRI.M.M.VINOD
         SMT.M.SUSEELA
         SMT. KEERTHI B. CHANDRAN
         SHRI.VIJAYAN PILLAI P.K.
         SRI.C.PURUSHOTHAMAN NAIR


    THIS OP (CIVIL) HAVING COME UP FOR ADMISSION
ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 O.P.(C) No.317 of 2021
                                2



                          JUDGMENT

Dated this the 04th day of August, 2021

The petitioner is the plaintiff in O.S.No.286

of 2019 on the files of the Additional Munsiff's

Court, Cherthala. The first prayer in the suit is

for a permanent prohibitory injunction restraining

the defendant from trespassing into plaint item

No.1 property, from demolishing the compound wall

on the boundary of the property and from

interfering with the peaceful possession and

enjoyment of his property by the petitioner. The

second prayer is for a mandatory injunction

directing the defendant to demolish the new

foundation constructed adjacent to the compound

wall and to restore it to the original position.

In the injunction application filed along with the

plaint, the court passed Ext.P2 order of status

quo on 20.06.2019. According to the petitioner,

during subsistence of the interim order the

defendant and henchmen demolished the compound O.P.(C) No.317 of 2021

wall on the southern side of the petitioner's

property and laid floor tiles over the foundation

of the wall. Thereupon, the petitioner filed

I.A.No.2 of 2020 praying for restoration of

demolished compound wall to its original position.

Aggrieved by the delay in disposing the

interlocutory application, the petitioner

approached this Court and by judgment dated

11.12.2020 in OP(C) No.988 of 2020, the Additional

Munsiff's Court, Cherthala was directed to dispose

the I.A within 15 days. Thereafter the court below

dismissed the I.A vide Ext.P12 order dated

13.01.2021.

2. The petitioner has raised various grounds

of challenge against the factual findings in the

impugned order. The respondent has filed counter

affidavit refuting the averments and contending

that the order needs no interference.

3. Learned Counsel for the petitioner

submitted that the main grievance is against the O.P.(C) No.317 of 2021

finding in Ext.P12 that the boundary wall and the

property having width of 60 links on its immediate

north does not belong to the petitioner. It is

contended that the said finding, rendered without

taking oral evidence, has the effect of non-

suiting the petitioner. According to the learned

Counsel, the finding was unwarranted, more so,

since the interlocutory application was filed by

the petitioner seeking restoration of the

demolished compound wall.

4. Learned Counsel for the respondent

submitted that the said finding has been rendered

based on the available evidence and it is for the

petitioner to establish his right over the

compound wall, if any, by adducing evidence in the

suit.

5. I find merit in the contention that the

trial court should not have expressed opinion on

the petitioner's title over the disputed boundary

wall without adducing evidence. As rightly O.P.(C) No.317 of 2021

contended, the finding on title will prejudice the

plaintiff in the conduct of his suit. Learned

Counsel for the petitioner submitted that the

court below may be directed to consider I.A.No.2

of 2020 afresh, untrammelled by the earlier

observations.

6. I consider the request to be reasonable.

Accordingly, the Original Petition is disposed of

setting aside Ext.P12 order and directing the

court below to reconsider I.A.No.2 of 2020 as

expeditiously as possible. If, after hearing the

Counsel on both sides, the court below feels that

the application can be decided only on the basis

of evidence, the interlocutory application can be

posted along with the suit.

Sd/-

V.G.ARUN JUDGE Scl/04.08.2021 O.P.(C) No.317 of 2021

APPENDIX OF OP(C) 317/2021

PETITIONER ANNEXURE EXHIBIT P1 TRUE COPY OF O.S.NO.286/2019 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT,CHERTHALA.

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 20.6.2019 IN I.A.NO.1974/2019 IN O.S.NO.286/2019 PASSED BY THE ADDL.MUNSIFF'S COURT,CHERTHALA.

EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A.NO.1975/2019 IN O.S.NO.286/2019 BEFORE THE HON'BLE MUNSIFF'S COURT,CHERTHALA.

EXHIBIT P4 TRUE COPY OF THE SECOND COMMISSION REPORT DATED 11-12-2019 SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A.NO.3987/2019 IN O.S.NO.286/2019 BEFORE THE HON'BLE MUNSIFF'S COURT,CHERTHALA.

EXHIBIT P5 TRUE COPY OF THE I.A.NO.2/2020 IN O.S.NO.286/2019 FILED BY THE PETITIONER BEFORE THE HON'BLE ADDL.MUNSIFF'S COURT,CHERTHALA.

EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.2/2020 IN O.S.NO.286/2019 BEFORE THE HON'BLE ADDL.MUNSIFF'S COURT,CHERTHALA. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 11.12.2020 PASSED BY THIS HONOURABLE COURT IN O.P(C)NO.988/2020.

EXHIBIT P8 TRUE COPY OF THE REPLY ISSUED BY THE SECRETARY,AROOR GRAMA PANCHAYAT UNDER THE RTI ACT TO THE PETITIONER DATED 10.2.2020 PRODUCED BY THE PETITIONER BEFORE THE COURT BELOW AS EXHIBIT-A3. EXHIBIT P9 TRUE COPY OF THE REPLY ISSUED BY THE SECRETARY,AROOR GRAMA PANCHAYAT UNDER THE RTI ACT TO THE PETITIONER DATED 10.2.2020 PRODUCED BY THE PETITIONER BEFORE THE COURT BELOW AS EXHIBIT A4. EXHIBIT P10 TRUE COPY OF THE PHOTOGRAPH OF THE O.P.(C) No.317 of 2021

COMPOUND WALL TAKEN AT THE TIME OF FILING OF THE SUIT PRODUCED BY THE PETITIONER BEFORE THE COURT BELOW AS EXHIBIT-A5.

EXHIBIT P11 TRUE COPY OF THE PHOTOGRAPH TAKEN AFTER THE DEMOLITION OF THE COMPOUND WALL PRODUCED BY THE PETITIONER BEFORE THE COURT BELOW AS EXHIBIT -A6.

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 13.1.2021 PASSED BY THE COURT BELOW IN I.A.NO.2/2020 IN O.S.NO.286/2019. EXHIBIT RA TRUE COPY OF THE PARTITION DEED NO-

13/2001 DATED 1.1.2001 OF THE S.R.O.KUNTHIATHODE EXHIBIT R B TRUE COPY OF THE LAND RELINQUISHMENT DATED 26.5.2019 ISSUED BY THE SAID K.K.RAMESH IN FOVOUR OF VILLAGE PANCHAYAT,AROOR.

EXHIBIT R C TRUE COPY OF LAND RELINQUISHMENT DATED 26.5.2019 ISSUED BY JOHN M.L.SEBASTINE JOSY, KISHORE KUMAR K.T. AND K.A. SURENDRAN IN FAVOUR VILLAGE PANCHAYAT, AROOR EXHIBIT R D TRUE COPY OF THE LETTER NO C1-5773/2019 DATED 14.8.2019 ISSUED BY THE SECRETARY, AROOR VILLAGE PANCHAYAT TO THE ASSISTANT ENGINEER, KSEB, ELECTRICAL SECTION, AROOR EXHIBIT R E TRUE COPY OF THE ESTIMATE NO DB/AROOR PANCHAYAT/AE/ARR/2019-20/ DATED 30.8.2019 ISSUED BY THE ASSISTANT ENGINEER, KSEB, ELECTRICAL SECTION, AROOR TO THE SECRETARY AROOR VILLAGE PANCHAYAT EXHIBIT R F TRUE COPY OF THE PHOTOGRAPH OF THE KOOTTALIL NANDAPAATHA EXHIBIT R G TRUE COPY OF THE NOTICE NO-C2-1485/20 DATED 7.3.2020 ISSUED BY THE SECRETARY AROOR PANCHAYAT EXHIBIT R G TRUE COPY OF THE NOTICE NO-C2-1485/20 DATED 7.3.2020 ISSUED BY THE SECRETARY AROOR PANCHAYAT EXHIBIT TRUE COPY OF THE JUDGMENT DATED O.P.(C) No.317 of 2021

18.3.2020 IN WPC NO-8455/2020 OF THIS HONOURABLE COURT.