Kumaran vs Ponmala
2021 Latest Caselaw 4384 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                        OP(C).No.1734 OF 2019

 AGAINST THE ORDER IN I.A NO.383/2019 IN O.S. NO.202/2018 ON THE
                 FILES OF MUNSIFF COURT, ALATHUR


PETITIONER:

               KUMARAN,
               AGED 66 YEARS
               S/O. PANKI, RESIDING AT KOZHUKULLY VEEDU,
               ELAVANPADOM, KIZHAKKENCHERRY AMSOM DESOM,
               ALATHUR TALUK, PALAKKAD DISTRICT

               BY ADVS.
               SRI.RAJESH SIVARAMANKUTTY
               SMT.K.VIJINA
               SMT.RASHMI PATHIYIL

RESPONDENTS:

      1        PONMALA S/O. PONNUMANI
               AGED 67 YEARS
               RESIDING AT KOZHUKULLY VEEDU, ELAVANPADOM,
               KIZHAKKENCHERRY AMSOM DESOM, ALATHUR TALUK,
               PALAKKAD DISTRICT - 678 001.

      2        RAJAN S/O. PANKI,
               AGED 40 YEARS
               RESIDING AT KOZHUKULLY VEEDU, ELAVANPADOM,
               KIZHAKKENCHERRY AMSOM DESOM, ALATHUR TALUK,
               PALAKKAD DISTRICT - 678 001.

               R2 BY ADV. SRI.BABY MATHEW

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.1734 OF 2019

                                   2

                                 JUDGMENT

Dated this the 5th day of February 2021

The plaintiff in O.S.No.202 of 2018 on the files of Munsiff

Court, Alathur challenges Ext.P6 order, by which it refused to

accept the request of the petitioner to depute a second

Commission.

2. I heard the learned counsel on both sides.

3. The petitioner challenged Ext.P2 Commission Report

dated 11.02.2019 contending that earnest attempts were not

made by the Surveyor as well as the Advocate Commissioner to

identify the property. It is submitted that there was no difficulty

at all to identify the property on the basis of the tittle deed of

the plaintiff. This contention did not find favour with the Court

below and after holding necessary enquiry and examining the

evidence on record, it held that there was no point in issuing a

second Commission and the property was not capable of being

identified at all.

4. This finding of the Court below is challenged by the

learned counsel for the petitioner/plaintiff.

5. After hearing the learned counsel on both sides and OP(C).No.1734 OF 2019

also looking at the findings entered into by the Court below, I do

not find any immediate reason for interfering with the order and

ordering of issue of Second Commission.

6. The learned counsel for the respondents submitted

referring to Ext.P2 Commission Report that what makes

identification of the property impossible is not the inaction on

the part of the Surveyor but the description of plaintiff's title

deed itself does not suit the description of plaint. It is pointed

out that unless the description in the purchase certificate in the

name of the petitioner is got corrected, the identification of the

property would remains to be an impossibility. I do not want to

express any remark on the merits of the contention raised.

7. I am of the opinion after hearing the counsel on both

sides that it would be open to parties to raise their respective

objections and contentions before the Court below in the course

of the trial of the suit. The Court below shall consider the

objection raised by the plaintiff to the Commission Report

irrespective of impugned Ext.P6 order passed by it dismissing

I.A.No.383 of 2019.

In the result, O.P. fails and it is dismissed, subject to

the observations made above. It is made clear that the Court OP(C).No.1734 OF 2019

below shall decide the question as to identity on the basis of the

entire evidence collected in the suit untrammeled by its findings

entered in Ext.P6 order and in accordance with law. In case the

Court below finds that a fresh report is needed to be called for, it

would be within its power to do it as well.

Sd/-

T.V.ANILKUMAR

JUDGE

DK OP(C).No.1734 OF 2019

APPENDIX PETITIONER'S EXHIBITS:

     EXHIBIT P1         TRUE COPY OF THE PLAINT IN
                        O.S.NO.202/2018 ON THE FILE OF THE
                        MUNSIFF COURT, ALATHUR

     EXHIBIT P2         TRUE COPY OF THE COMMISSION REPORT
                        DATED 11.02.2019 SUBMITTED BY THE
                        ADVOCATE ALATHUR

     EXHIBIT P3         TRUE COPY OF PETITION DATED 14.01.2019

IN I.A.NO.93/2019 IN O.S.NO.202/2018 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, ALATHUR

EXHIBIT P4 TRUE COPY OF THE OBJECTION TO COMMISSION REPORT FILED BY PETITIONER DATED 26.02.2019 IN O.S.NO.202/2018 FILED BEFORE MUNSIFF COURT, ALATHUR

EXHIBIT P5 TRUE COPY OF PETITION DATED 14.02.2019 IN I.A.NO.383/2019 IN O.S.NO.202/2018 ON THE FILES OF MUNSIFF COURT, ALATHUR

EXHIBIT P6 CERTIFIED COPY OF ORDER DATED 15.03.2019 IN I.A.NO.383/2019 IN O.S.NO.202/2018 PASSED BY THE MUNSIFF COURT, ALATHUR

RESPONDENTS' EXHIBITS: NIL