Abdul Salam vs Kunhasia
2021 Latest Caselaw 5599 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                        OP(C).No.1265 OF 2020

            O.S.NO.237/2017 OF MUNSIFF COURT, HOSDURG


PETITIONER/PLAINTIFF:

             ABDUL SALAM
             AGED 66 YEARS
             S/O.LATE MUHAMMED HAJI, RESIDING AT HIDAYATH NAGAR,
             MADHUR VILLAGE, HIDAYATH NAGAR P.O.,
             KASARAGOD -671121.

             BY ADVS.
             SRI.T.SETHUMADHAVAN (SR.)
             SMT.DEEPA NARAYANAN
             SMT.PREETHI. P.V.
             SRI.M.V.BALAGOPAL
             SMT.ASHA MARIAM MATHEWS

RESPONDENTS/DEFENDANTS:

      1      KUNHASIA,
             AGED 42 YEARS, D/O. LATE M. ABDULLA,
             W/O.NAZAR, RESIDING AT ARAYALTHARA,
             POOCHAKKAD, KEEKAN P.O., KEEKAN VILLAGE,
             HOSDURG TALUK, KASARAGOD-671316.

      2      NAUSHAD,
             AGED 37 YEARS, S/O.LATE M. ABDULLA,
             RESIDING AT MEETHAL MOUVAL, MOUVAL P.O.,
             PALLIKKERE VILLAGE, HOSDURG TALUK, KASARAGOD-671316.


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C) No.1265/2020                   2




                             JUDGMENT

Dated this the 16th day of February 2021

Exhibits P5 and P8 orders passed in O.S.No.237 of 2017

by the learned Munsiff, Hosdurg, are under challenge in this

Original Petition.

2. The petitioner/plaintiff filed a suit for declaration of title

with respect to plaint B schedule property and for consequential

injunction. It is an admitted fact that on a former occasion, a

commission was taken out for preparation of mahazar of the suit

property. Later, the plaintiff applied for issue of survey

commission and measurement of the property on the basis of

the contention raised by the defendants that the schedule

property is not identifiable. It was in this scenario that Exhibit P4

application for issue of survey Commission was filed. It is a

matter of fact that the application was not opposed by the

defendants. Nevertheless the court below by Exhibit P5 order

dismissed Exhibit P4 application. The review of the order sought

for was also turned down by Exhibit P8 order. Consequentially

Exhibits P5 and P8 orders are now challenged in this Original

Petition.

3. I heard the learned counsel for the petitioner.

4. Though notice was served on the respondents,

nobody appeared to contest the proceedings.

5. Having gone through the impugned orders, I find my

way difficult to agree with the view taken by the court below

inasmuch as issue of commission is absolutely necessary to

decide the dispute on title of the suit property raised by the

defendants in the written statement. It is absolutely necessary to

identify the property without which a decree for declaration of

title and consequential injunction cannot be canvassed. Exhibits

P2 and P2(a) report and rough sketch submitted by the

Commissioner will not in anyway help identify the suit property.

In order to decide the matter in dispute involved between the

parties, it is highly essential to depute an Advocate

Commissioner to measure out the property on the basis of

revenue records as well as title deed of the petitioner. The

contrary view taken by the court below that the property could be

identified even otherwise based on the available records cannot

be endorsed. The impugned orders are liable to be set aside.

In the result, this Original Petition is allowed setting aside

Exhibits P5 and P8 orders. I.A.No.2643 of 2019 is allowed. The

court below will depute an Advocate Commissioner to survey

and measure out the property.

Sd/-

T.V.ANILKUMAR JUDGE csl

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.

237/2017 ON THE FILE OF THE MUNSIFF COURT, HOSDURG DATED 14/08/2017.

EXHIBIT P2 TRUE COPY OF THE REPORT SUBMITTED BY THE COMMISSIONER DATED 19/09/2017.

EXHIBIT P2(a) TRUE COPY OF THE PLAN SUBMITTED BY THE COMMISSIONER DATED 19/09/2017.

EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS DATED 23/10/2018.

EXHIBIT P4 TRUE COPY OF THE APPLICATION IA NO.2643/2019 ALONG WITH AFFIDAVIT FILED BY THE PETITIONER DATED 22/11/2019.

EXHIBIT P5 TRUE COPY OF THE ORDER IN IA NO.2643/2019 DATED 03/01/2020.

EXHIBIT P6 TRUE COPY OF THE REVIEW APPLICATION IA NO.1/2020 FILED BY PETITIONER DATED 06/02/2020.

EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENTS DATED 13/02/2020.

EXHIBIT P8 TRUE COPY OF THE ORDER IN IA NO.1/2020 IN OS NO.237/2017 ON THE FILE OF THE MUNSIFF COURT, HOSDURG DATED 07/03/2020.