Mini vs Narayanan
2021 Latest Caselaw 1429 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

            THE HONOURABLE MR. JUSTICE SATHISH NINAN

   THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                         OP(C).No.1427 OF 2020

    I.A.NO.376/2019 IN OS 46/2017 OF MUNSIFF COURT, MANJERI

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PETITIONER/2ND PETITIONER/2ND DEFENDANT:

             MINI
             AGED 41 YEARS
             W/O. GOPALAKRISHNAN, KUNNATH HOUSE, PULPATTA AMSOM,
             OLAMATHIL DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

             BY ADV. SRI.K.RAKESH

RESPONDENTS/RESPONDENTS/PLAINTIFFS & 1ST DEFENDANT:

      1      NARAYANAN
             AGED 62 YEARS,
             S/O. NAMBEERI,THAZHE PARAMBATH HOUSE,
             PULPATTA AMSOM, OLAMATHIL DESOM, ERNAD TALUK,
             MALAPPURAM DISTRICT, PIN-673 642

      2      SUNITHA,
             AGED 48 YEARS,
             W/O. NAYANAN, THAZHE PARAMBATH HOUSE,
             PULPATTA AMSOM, OLAMATHIL DESOM, ERNAD TALUK,
             MALAPPURAM DISTRICT, PIN-673 642

      3      GOPALAKRISHNAN,
             AGED 51 YEARS
             S/O. KUNHAN, KUNNATH HOUSE,
             PULPATTA AMSOM, OLAMATHIL DESOM,
             ERNAD TALUK, MALAPPURAM DISTRICT, PIN-673 642

             R1-2   BY   ADV.   SRI.G.HARIHARAN
             R1-2   BY   ADV.   SRI.PRAVEEN.H.
             R1-2   BY   ADV.   SMT.K.S.SMITHA
             R1-2   BY   ADV.   SMT.T.T.SHANIBA
             R1-2   BY   ADV.   SRI.M.V.VIPINDAS
             R1-2   BY   ADV.   SHRI.AMAL DEV D
             R1-2   BY   ADV.   SMT.AKHILA P.

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                    SATHISH NINAN, J.
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                O. P. (C) No.1427 of 2020
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         Dated this the 14th day of January, 2021

                              JUDGMENT

The dismissal of an application seeking

remission of a Commission Report, is under challenge in this original petition by the second

defendant.

2. The dispute involved in the suit relates to

plaint 'B' schedule way alleged to be having a

width of 3 metres. Prohibitory injunction is

claimed against obstruction of plaint 'B' schedule

way and mandatory injunction for removal of a

pillar and wall alleged to have been put

encroaching into plaint 'B' schedule way. Going by

the plaint averments, both the plaintiffs and the

defendants purchased their respective properties

from a common vendor viz. one Fathima. The initial

purchase was by the plaintiff, of the plaint 'A'

schedule property, as per sale deed no.192/2008.

The said sale deed reserves 'B' schedule pathway

through the remaining property of Fathima. O. P. (C) No.1427 of 2020

Subsequently, defendants purchased from the said

Fathima property lying on the western side of the

plaintiff's plaint 'A' schedule property. According

to the plaintiff, the fact that a 3 metre width way

is left out has been mentioned in the sale deed in

favour of the defendants. The suit is filed on the

allegation that the way is being encroached upon.

3. The Commission taken out by the plaintiff

was not assisted by a Surveyor. The sketch

submitted by the Commissioner is only a rough

sketch. The defendants filed objections in the form

of an application as IA 376/2019 to the Commission

Report and praying that the report may be remitted

back to the Commissioner for preparing a plan with

reference to the documents of title. The trial

court dismissed the application for the reason that

the suit is one for injunction simplicitor and that

the Commissioner has identified the plaint schedule

properties.

4. On the facts as noticed earlier, measurement

of the properties covered under the title deeds and

the way in question are necessary for a proper O. P. (C) No.1427 of 2020

resolution of the dispute. The identification of

the way as stated to be mentioned in the documents,

as to whether there are encroachments into the said

way, are all matters ascertained and identified.

This can be only done on measurement and with the

assistance of a Surveyor. A plan is also to be

prepared with regard to the same. In the

circumstances, the order impugned is liable to be

set aside and I do so.

5. Accordingly the original petition is

allowed. Order on IA 376/2019 is set aside. The

learned Munsiff shall re-consider the application

and pass fresh orders. It would be open for the

plaintiff and the defendants to file additional

work memos to be considered along with the

application.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy//

P.S. to Judge OP(C).No.1427 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 20.1.2017 IN O.S. NO. 46/2017 ON THE FILES OF MUNSIFF COURT, MANJERI.

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 25.2.2017 IN O.S. NO. 46/2017 OF THE MUNSIFF COURT, MANJERI.

EXHIBIT P3 TRUE COPY OF THE INTERIM REPORT DATED, 8.2.2017 IN RELATION TO AN INSPECTION DATED 21.1.2017 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO. 46/2017 OF MUNSIFF COURT, MANJERI.

EXHIBIT P4 TRUE COPY OF THE COMMISSION REPORT DATED 18.08.2017 IN O.S. NO. 46/2017 OF THE MUNSIFF COURT, MANJERI.

EXHIBIT P5 TRUE COPY OF THE I.A. NO. 376/2019 IN O.S.

NO. 46/2017 OF THE MUNSIFF COURT, MANJERI DATED 25.2.2019.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 18.3.2020 IN I.A. NO. 376/2019 IN O.S. NO. 46/2017 OF THE HON'BLE MUNSIFF COURT, MANJERI.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1A A TRUE COPY OF THE COMMISSION APPLICATION FILED AS IA.275/2017 IN OS.46/2017 BEFORE THE MUNSIFF COURT, MANJERI.

EXHIBIT R1B A TRUE COPY OF THE SALE DEED REGISTERED AS DOCUMENT NO.192/2008 OF SRO MONGAM.

EXHIBIT R1C A TRUE COPY OF THE PHOTOGRAPHS OF B SECHEDULE PROPERTY BEFORE THE FILING OF THE SUIT.

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