Mallikadasan vs Krishnankutty
2021 Latest Caselaw 6309 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

    MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

                          OP(C).No.1913 OF 2020

     AGAINST THE ORDER DATED 1.10.2020 IN IA NO.67/2020 IN OS
              NO.170/2016 OF MUNSIFF COURT, CHITTUR


PETITIONER/DEFENDANT:

             MALLIKADASAN,
             AGED 60 YEARS
             W/O.SIVADASAN,
             RESIDING AT KARUVANOORTHARA,
             KODUVAYUR AMSOM DESOM,
             CHITTUR TALUK - 678 101.

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

RESPONDENTS/PLAINTIFFS:

      1      KRISHNANKUTTY,
             S/O.PADMANABHA NAIR, AGED 71 YEARS,
             RESIDING AT BRINDAVAN VEEDU,
             KARUVANNURTHARA, KODUVAYUR AMSOM DESOM,
             CHITTUR TALUK, PALAKKAD DISTRICT - 678 101.

      2      RADHA
             W/O.KRISHNANKUTTY, AGED 69 YEARS,
             RESIDING AT BRINDAVAN VEEDU,
             KARUVANNURTHARA, KODUVAYUR AMSOM DESOM,
             CHITTUR TALUK, PALAKKAD DISTRICT - 678 101.

             R1-2   BY   ADV.   SRI.K.MOHANAKANNAN
             R1-2   BY   ADV.   SMT.A.R.PRAVITHA
             R1-2   BY   ADV.   SMT.D.S.THUSHARA
             R1-2   BY   ADV.   SRI.H.PRAVEEN (KOTTARAKARA)
             R1-2   BY   ADV.   SMT.T.V.NEEMA

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
    O.P.(C) No.1913/2020                     2



                                  JUDGMENT

Dated this the 22nd day of February 2021

Exhibit P5 order passed by the Munsiff Court, Chittur is

challenged by the aggrieved defendant in O.S.No.170 of 2016.

2. The suit was instituted by the respondents/plaintiffs

for injunction. The subject matter of dispute is B schedule

pathway whose existence is denied by the petitioner/defendant.

She applied for issue of Commission by filing Exhibit P3

application. The request made in Exhibit P3 is to prepare plan

of plaint A and B schedule properties based on title deeds of the

parties and also identify them. The issue of Commission was

opposed by the plaintiffs contending that there is already a plan

prepared in an earlier suit O.S.No.505 of 2007 between the

same parties. That too was a suit which pertains to declaration

of right to disputed pathway. It was also contended that

questions as to identity of properties did not arise for

consideration in O.S.No.170 of 2016 even going by the

contentions of the parties taken in their respective pleadings.

3. The court below after hearing the parties accepted

the objection raised by the respondents herein and dismissed

Exhibit P5 I.A.No.67 of 2020 in O.S.No.170 of 2016.

4. I heard the counsel appearing on either side.

5. Learned counsel for the petitioner contended that the

suit properties are liable to be identified for effective adjudication

of issues involved in O.S.No.170 of 2016. On the other hand,

the learned counsel for the respondents submitted that identity

of properties is not a matter in dispute. It was pointed out that

the existence of pathway is not disputed by the petitioner. What

is, on the other hand, disputed is title to suit properties asserted

by the plaintiffs. Learned counsel for the petitioner points out

that the pathway in question was widened by surrendering a

portion of the property that belonged to the defendant and that

has to be necessarily identified.

6. After hearing the counsel appearing on both sides,

I am of the opinion that there is no reason to interfere with the

impugned order passed by the court below. Identity of

properties is not a matter in dispute. For resolving the issue as

to title, issue of Commission is not necessary. Further there is

already a report between the parties prepared in O.S.No.505 of

2007. Whether there was surrender of any portion of property

held by the defendants is a matter to be adjudicated on facts

and other evidence. In my view, no illegality has been committed

by the court below in passing Exhibit P5 order. The impugned

order, therefore, is not worthy of interference.

In the result, O.P. fails and it is dismissed. I make it clear

that dismissal of the Commission application will not affect

petitioner's right to pursue her case as to surrender of portion of

property for widening the way.

Sd/-

T.V.ANILKUMAR JUDGE csl

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1               TRUE COPY OF THE PLAINT IN
                         O.S.NO.170/2016 BEFORE THE MUNSIFF
                         COURT, CHITTUR.

EXHIBIT P2               TRUE COPY OF WRITTEN STATEMENT FILED BY
                         THE DEFENDANT/PETITIONER.

EXHIBIT P3               TRUE COPY OF THE I.A.NO.67/2020 DATED
                         6/1/2020.

EXHIBIT P4               TRUE COPY OF THE REPORT SUBMITTED BY
                         ADVOCATE COMMISSIONER IN OS
                         NO.505/2007.

EXHIBIT P5               TRUE COPY OF THE ORDER DATED 01/10/2020
                         IN IA NO.67/2020 IN OS NO.170/2016 OF
                         THE COURT OF MUNSIFF, CHITTUR.

EXHIBIT P6               TRUE COPY OF THE JUDGMENT IN OS

NO.505/2007 DATED 17/11/2015 BEFORE THE MUNSIFF COURT, CHITTUR.