E.P.Prabha vs T.Chrispan
2021 Latest Caselaw 6020 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

  FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

                    OP(C).No.76 OF 2020

    AGAINST THE ORDER IN IA 1992/2019 IN OS 204/2014 OF
              PRINCIPAL SUB COURT,TRIVANDRUM


PETITIONER/PETITIONER/PLAINTIFF:

            E.P.PRABHA
            AGED 44 YEARS
            D/O. BREJITT IDEMMA, RESIDING AT 'PRAKASH
            BHAVAN', THUNDATHIL, AYIROOPARA VILLAGE,
            THIRUVANANTHAPURAM, AND NOW RESIDING AT VIMALA
            BHAVAN, VALIYOTTUKONAM, PEYAD, PERUKAVU P.O.,
            THIRUVANANTHAPURAM.

            BY ADV. SRI.LATHEESH SEBASTIAN

RESPONDENT/COUNTER PETITIONER/DEFENDANT:

            T.CHRISPAN
            S/O. THOMSON, 'THOMSON BHAVAN', KULAKKOTTUKONAM,
            THUNDATHIL P.O., THIRUVANANTHAPURAM-695 581.

            BY ADV. SRI.R.SUNIL KUMAR
            BY ADV. SMT.A.SALINI LAL

     THIS  OP  (CIVIL)   HAVING     BEEN   FINALLY  HEARD ON
19.02.2021, THE COURT    ON THE     SAME   DAY DELIVERED THE
FOLLOWING:
 O.P.(C)No.76/2020

                                :-2-:

      Dated this the 19th day of February, 2021


                        J U D G M E N T

Ext.P6 application filed by the plaintiff in

O.S.No.204/2014 before the Principal Sub Court,

Thiruvananthapuram, was dismissed. Being aggrieved

by the impugned order dated 03.12.2019, the

plaintiff has filed this original petition.

2. The suit was filed for a decree of

permanent injunction as well as for a decree for

constructing a compound wall made up of cement

hollow bricks on a granite foundation at a height

of five feet through northern boundary separating

plaint property from the property of the defendant.

3. In Ext.P6 application for issue of

Commission, the plaintiff sought measurement of the

plaint property along with counter claim schedule

II that belongs to the defendant on the basis of

survey records. Along with the prayer, cost of the O.P.(C)No.76/2020

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compound wall to be constructed, was also sought.

4. The defendant opposed the application

contending that issue of Commission for the

purposes sought was beyond the scope of suit. The

court below accepting the objection, dismissed the

application. In paragraph No.5 of the order the

court below noticed that in as much as the

plaintiff has a definite case that suit property is

situated within the well defined boundaries and

especially that the Manthirana existed on the

northern side of plaint property, it was quite

unnecessary to depute an Advocate Commissioner for

measuring out the property.

5. I heard the learned counsel for the

petitioner as well as the respondent.

6. Learned counsel for the petitioner submits

that looking at the entirety of the plaint and

especially reading the amended prayer 'AA' in the O.P.(C)No.76/2020

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suit and the contentions of the respondent, it

could be made out that the suit is basically one

for demarcation and fixation of boundary and

therefore the issue of Commission to identify the

northern boundary on the basis of survey records is

highly essential. Learned counsel for the

respondent reacting to this submission contended

that in fact there is no prayer for fixation of

boundary and in as much as there existed a

Manthirana on the northern side of the suit

property, canvassing a decree for fixation of

boundary itself is meaningless. Learned counsel

further pointed out that in order to maintain a

suit for putting up a boundary, the neighbouring

landowner' property should also be scheduled in the

plaint which has not been done in this case.

7. After hearing both sides, I am of the

opinion that the contention canvassed by the O.P.(C)No.76/2020

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learned counsel for the respondent cannot be taken

to be an absolute proposition of law applicable in

all cases indiscriminately. I am satisfied that

deputation of Advocate Commissioner for measurement

and identification of northern boundary of the

property will not affect the right of the

defendant. On the other hand, that will only

facilitate a fair and final decision of the matter

in dispute between parties. For the reason above

said, I am of the opinion that the impugned order

is worth interfering and cannot be sustained.

In the result, the original petition is

allowed. I.A.No.1992/2019 filed by the petitioner

is allowed. The court below is directed to depute

an Advocate Commissioner to note down matters set

forth in I.A.No.1992/2019. It is made clear that

this order will not affect the respondent's right

to take objections as to the relevancy of the plan O.P.(C)No.76/2020

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and report when issues arising in the suit are

determined by the court. Being a suit of the year

2014, the court below is directed to dispose the

same within a period of six months from the date of

receipt of certified copy of this judgment.

All pending interlocutory applications are

closed.

Sd/-

T.V.ANILKUMAR JUDGE ami/ O.P.(C)No.76/2020

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APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.204/2014 OF PRINCIPAL COURT, THIRUVANANTHAPURAM.

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM OF THE RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE REPLICATION TO EXT.P2 WRITTEN STATEMENT OF THE RESPONDENT FILED BY THE PETITIONER.

EXHIBIT P4 TRUE COPY OF COMMISSIONER APPLICATION FILED BY THE PETITIONER AS I.A.NO.1457/2014 IN O.S.NO.243/2014 OF MUNSIFF COURT, THIRUVANANTHAPURAM.

EXHIBIT P5 TRUE COPY OF THE REPORT AND PLAN OF THE ADVOCATE COMMISSIONER DATED 1.3.2014.

EXHIBIT P6 TRUE COPY OF I.A.NO.1992/2019 IN O.S.NO.204/2019 BEFORE THE SUB COURT, THIRUVANANTHAPURAM.

EXHIBIT P7 TRUE COPY OF THE OBJECTION TO EXT.P6 PETITION.

EXHIBIT P8 TRUE COPY OF THE ORDER IN I.A.NO.1992/2019 IN O.S.NO.204/2019 BEFORE THE SUB COURT, THIRUVANANTHAPURAM DATED 3.12.2019.