Kerala High Court
S.Narayanaswami vs S.Narayanaswami on 15 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942
OP(C).No.171 OF 2021
PENDING CIVIL MATTER ORDER DATED 15.12.2020 IN THE FINAL DECREE
PROCEEDINGS F.D.I.A.8066/2008 IN OS 621/2005 OF SUB COURT,
ERNAKULAM
PETITIONER/LEGAL HEIR OF FIRST RESPONDENT IN FDIA:
S.NARAYANASWAMI,
AGED 52 YEARS,
S/O. LATE SUBRAMANIYA AYYAR, THEKKEMADOM,
PALLIPARAMBU KAVU, NADAMA VILLAGE, NEAR RAILWAY
STATION ROAD, THRIPUNITHURA-682 301
BY ADVS.
SRI.B.KRISHNA MANI
SMT.DHANUJA M.S
RESPONDENTS/PETITIONERS 1 TO 6 AND ADDITIONAL RESPONDENTS 3 TO 6
AND RESPONDENTS 11 TO 13 LEGAL HEIRS OF THE 1ST RESPONDENT IN
FDIA:
1 M.S.VENKITASUBRAMANIAN,
S/O. SARADA AMMAL, MALIYAKKAL MADOM, THRIKKARIYOOR
P.O, KOTHAMANGALAM, PIN-686 692, ERNAKULAM DISTRICT.
2 M.S. ANANTHAN VISWANATHAN,
S/O. SARADA AMMAL, MALIYAKKAL MADOM, THRIKKARIYOOR
P.O, KOTHAMANGALAM, PIN-686 692, ERNAKULAM DISTRICT.
3 M.S. BHAGAVATHY,
D/O. SARADA AMMAL, IX/149, KAVUMPALLI MADOM,
PARAPPALLY ROAD, THIRUVANKULAM P.O, PIN-682 305,
ERNAKULAM DISTRICT.
4 PARVATHY AMMAL,
D/O. SARADA AMMAL, THARAYIL MADOM, EAST NADA,
MAVELIKKARA P.O, ALAPPUZHA-690 101
5 M.S. GURUVAYOORAPPAN ,
S/O. SARADA AMMAL, MALIYAKKAL TRIKARUYOOR P.O,
KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 692
6 M.S. GEETHA,
VADAKEMADOM, NEAR GOVT. HOSPITAL ROAD, CHALAKUDI,
OP(C).No.171 OF 2021 2
THRISSUR DISTRICT, PIN-680 307
7 N. SUBRAMANIAN,
S/O. LATE MEENAKSHI AMMAL, ASHIRWAD,
KANNANKULANGARA, TRIPUNITHURA, ERNAKULAM-682 301
8 N. ANANDA VISWANATHAN,
S/O.LATE MEENAKSHI AMMAL, KARTHIKA,
KANNANKULANGARA, TRIPUNITHURA, ERNAKULAM-682301
9 N. LAKSHMY
W/O. R. GOPALAKRISHNAN, (RETIRED MAJOR), FLAT NO.
18, 2ND FLOOR, PADMA ENCLAVE, TRICHI ROAD,
DINDIGAL-624 005
10 N. PARVATHY,
W/O. K.P. KRISHNAN, KOOLIKKARA MADOM,
SREEMOOLANAGARAM P.O, ERNAKULAM DISTRICT-683 580
11 S. ANANTHAVISWANATHAN,
S/O. LATE SUBRAMANIYA AYYAR, AGED 57 YEARS,
THEKKEMADOM, PALLIPARAMBU KAVU, NADAMA VILLAGE,
NEAR RAILWAY STATION ROAD, THRIPUNITHURA -682 301
12 S. RAMAKRISHNAN,
S/O.LATE SUBRAMANYA AYYAR, AGED 55 YEARS,
THEKKEMADOM, PALLIPARAMBU KAVU, NADAMA VILLAGE,
NEAR RAILWAY STATION ROAD, THRIPUNITHURA-682 301
13 S. GIRIJA,
D/O. SUBRAMANIYA AYYAR, AGED 49 YEARS, THEKKEMADOM,
PALLIPARAMBU KAVU, NADAMA VILLAGE, NEAR RAILWAY
STATION ROAD, THRIPUNITHURA-682 301
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No.171 OF 2021 3
JUDGMENT
Petitioner in this proceedings initiated
under Article 227 of the Constitution of India
challenges Ext.P4 order passed by the learned
Sub Judge, Ernakulam in FDIA.8006/2008 in
O.S.No.621 of 2005.
2. By the impugned order, the commissioner
and surveyor were directed to submit report and
plan without holding physical inspection of the
property in question.
3. The learned counsel for the petitioner
Advocate B.Krishna Mani challenges the legality
of this order contending that the direction
issued by the court below runs counter to the
judgment of this Court in RSA No.508 of 2019
dated 14.10.2019.
4. The learned advocate Sri.Martin D
Alumkar takes notice on behalf of the
respondents 1 to 6. I heard the learned counsel
appearing on both sides.
5. It has come out that subsequent to the
decision rendered by this Court in RSA No.508 of
2019, the advocate commissioner along with
surveyor had occasions to visit the property to
report matters sought to be ascertained. For
one or other reason, the measurements could not
be recorded and execution of report and plan
were delayed.
6. The learned counsel for the petitioner
submits that commissioner and surveyor may be
directed to visit the property and take physical
measurement in accordance with Ext.C1(a) sketch
and report the matters sought to be ascertained.
The learned counsel for the respondents 1 to 6
submitted that he has no objection to the
commissioner and surveyor visiting the property
over again and taking physical measurements. It
was submitted that physical measurements so
taken shall not under any circumstance be
allowed to vary the measurements recorded in
Ext.C1(a) plan. The submission made appears to
be quite legal and correct.
In the result, O.P succeeds and impugned
order in FDIA No.8066/2008 in O.S.No.621/2005
before the Sub Court, Ernakulam is set aside. It
is made clear that the execution of commission
shall under no circumstance run counter to any
of the directions contained in RSA 508 of 2019.
The court below is directed to expedite the
matter and see that the pending final decree
application itself is disposed of within a
period of one month from the date of receipt of
certified copy of this judgment.
sd/-
T.V.ANILKUMAR,
JUDGE
pm
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
28.5.2010 IN R.S.A NO. 433/2009 BEFORE
THE HON'BLE HIGH COURT OF KERALA,
ERNAKULAM.
EXHIBIT P2 TRUE COPY OF THE PLAN AND REPORT DATED
26.10.2015 ALONG WITH THE SKETCH.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED
14.10.2019 IN R.S.A 508/2019 BEFORE THE
HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 15.12.2020
IN THE FINAL DECREE PROCEEDINGS F.D.I.A
8066/2008 IN O.S. 621/2005 BEFORE THE
SUB COURT, ERNAKULAM.
RESPONDENTS' EXHIBITS: NIL
