Ajayakumar vs Krishnankutty
2021 Latest Caselaw 4832 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

    WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                        OP(C).No.3448 OF 2018

   AGAINST THE ORDER/JUDGMENT IN OS 112/2010 OF MUNSIFF COURT,
                             ALATHUR


PETITIONER/PLAINTIFF:

             AJAYAKUMAR,
             S/O KUTTAPPAN, RESIDING AT KALLAYIL, KIZHAKKENCHERY
             AMSOM DESOM, ALATHUR TALUK.

             BY ADVS.
             SRI.P.R.VENKATESH
             SRI.G.KEERTHIVAS

RESPONDENT/DEFENDANT:

             KRISHNANKUTTY,
             S/O K.C.KANJUNNI, RESIDING AT KALLAYIL,
             KIZHAKKENCHERY AMSOM DESOM, ALATHUR TALUK 678 541.

             R1 BY ADV. SRI.BABY MATHEW

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.3448 OF 2018                  2




                                 JUDGMENT

The plaintiff in O.S.No.112 of 2010 on the

file of Munsiff's Court, Alathur sought to remit

commission report and plan dated 21.3.2018

submitted before the court. I.A.No.866 of 2018

filed for the said purpose was dismissed by the

court below holding that the request for

measurement of the property based on old survey

plan was beyond the scope of the suit. This

finding is seriously challenged in this OP by

the aggrieved plaintiff.

2. I heard the learned counsel for the

petitioner/plaintiff as well as the

respondent/defendant.

3. The suit filed is one for permanent

prohibitory injunction. The commission was taken

out for measurement of the property based on

resurvey plan. According to the petitioner

unless the properties are permitted to be

measured on the basis of old survey plan as

well, the matter in dispute arising in the suit

between parties cannot be effectively

adjudicated. The learned counsel for the

respondent submitted that the suit being one for

permanent prohibitory injunction, the need for

the property being measured out does not arise

at all and therefore, itself further request of

the plaintiff for measuring the property based

on old survey plan is totally uncalled for. The

submission made by the learned counsel would

have been rightly accepted had this been a case

where the issue of commission was objected at

the very inception itself. Having the

commissioner been allowed to measure out the

property and prepare a plan, I am of opinion

that now it is too late to contend that the

property should not be allowed to be measured on

the basis of old survey records.

4. It is also contended by the learned

counsel for respondent in support of the

impugned order that, there exists no dispute as

to identity and further the respondent does not

dispute either the possession of petitioner over

the suit property. On the other hand, the

learned counsel for the petitioner submits that

on a total reading of the pleadings of the

parties, it could be seen that a dispute exists

between parties with respect to the northern

side of the plaint schedule property.

5. Having heard both sides, I am opinion

that if the commissioner is permitted to measure

the property on the strength of old survey plan

also, that will not in any way prejudice the

respondent. If a report not in accordance with

the authentic old plan is submitted, it will be

open to the defendant to challenge the

correctness of the same and pursue all such

contentions at the appropriate stage of the

suit. I am of opinion that it may not be proper

at this stage, to turn down the request of the

plaintiff to measure out the suit property with

the aid of the old survey plan also in the light

of what has been submitted above.

In the result, this OP and I.A.No.866 of

2018 are allowed. It is made clear that the plan

and report already submitted by the advocate

commissioner shall remain in tact for the time

being. At the same time, it will be open to the

petitioner to cause to prepare a separate plan

on the basis of old survey records also. It is

made clear that the court below will be at

liberty to consider the relevancy of the report

and plan prepared as per old survey plan when

the issue arising in the suit is taken up for

decision during trial. It is directed that the

petitioner shall take all endevour to secure the

old survey records for expediting the execution

of the commissioner. This being a suit of 2010,

there will be a direction to expedite the suit

proceeding and finalise it as expeditiously as

possible, within a period of six months from the

date of receipt of a certified copy of this

judgment.

Sd/-

T.V.ANILKUMAR, JUDGE

pm

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.112/2010 FILED BEFORE THE MUNSIFF'S COURT, ALATHUR.

EXHIBIT P2 TRUE COPY OF THE ASSIGNMENT DEED NO.1679/2010 AT THE SRO, VADAKKANCHERY.

EXHIBIT P3 TRUE COPY OF THE REPORT DATED 21.3.2018 SUBMITTED BY THE COMMISSIONER.

EXHIBIT P4 TRUE COPY OF THE OBJECTIONS DATED 5.4.2018 OF THE COMMISSIONER.

EXHIBIT P5 TRUE COPY OF WRITTEN STATEMENT DATED 30.8.2010 SUBMITTED BY THE PETITIONER IN OS NO.112/2010 ON THE FILES OF THE MUNSIFF COURT, ALATHUR.

EXHIBIT P6 TRUE COPY OF IA NO.866/2018 IN OS NO.112/2010 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, ALATHUR.

EXHIBIT P7 TRUE COPY OF COUNTER STATEMENT IA NO.866/2018 IN OS NO.112/2010 FILED BY THE DEFENDANT BEFORE THE MUNSIFF COURT, ALATHUR.

EXHIBIT P8 TRUE COPY OF ORDER DATED 16.11.2018 IN IA NO.866/2018 IN OS NO.112/2010 OF THE MUNSIFF COURT, ALATHUR.

RESPONDENT'S EXHIBITS: NIL