Kerala High Court
Sukumaran M.K vs Sivadasan M.E on 18 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942
OP(C).No.1999 OF 2020
AGAINST THE ORDER DATED 7/12/2020 IN I.A.941/2019 IN OS 12/2013 OF
MUNSIFF COURT, KOYILANDY,KOZHIKODE DISTRICT
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PETITIONER/PETITIONER/PLAINTIFF:
SUKUMARAN M.K.
AGED 49 YEARS
S/O.KANNAN NAIR, PENSIONER,
RESIDING AT EDAVANA MEETHAL,
P.O.ARIKKULAM, ARIKKULAM AMSOM,
MAVATT DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT - 673 614.
BY ADVS.
SRI.SANTHARAM.P
SMT.REKHA ARAVIND
SRI.PAUL P. ABRAHAM
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 SIVADASAN M.E.,
S/O.NARAYANAN NAIR,AGED 57 YEARS, COOLIE,
RESIDING AT MEETHALE EDAVALATH,
KURUVANGAD AMSOM DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT - 673 614.
2 MADHAVI AMMA
W/O.NARAYANAN NAIR, AGED 60 YEARS, SWASTHAM, RESIDING
AT THAZHE EDAVALATH KURUVANGAD AMSOM DESOM, KOYILANDY
TALUK,
KOZHIKODE DISTRICT -673 614.
3 VIJAYALAKSHMI
W/O.VASUDEVAN, AGED 38 YEARS, SWASTHAM,
RESIDING AT MEETHALE EDAVALATH,
KURUVANGAD AMSOM DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT - 673 614.
OP(C).No.1999 OF 2020
4 SYLAJA
W/O.RAJENDRAN, AGED 49 YEARS, SWASTHAM,
RESIDING AT MEETHALE EDAVALATH,
KURUVANGAD AMSOM DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT - 673 614.
5 KARUNAKARAN NAIR
S/O.CHERIYOMANA NAIR, AGED 66 YEARS, NUPURAM HOUSE,
POYILKAVU, EDAKKULAM AMSOM DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT - 673 306.
6 MADHVAN NAIR
S/O.KUNHIKKANNAN NAIR, AGED 80 YEARS,
VADAKKEKARA HOUSE, KURUVANGAD AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
7 KUTTIMALU AMMA
D/O.CHERYOMANA NAIR, AGED 84 YEARS,
ALIYAMBURATH HOUSE, MELUR AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 306.
8 NARAYANAI AMMA
D/O.RAMUNNI NAIR, AGED 85 YEARS,
THAZHE EDAVALATH HOUSE, KURUVANGAD AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
9 LAKSHMI AMMA
D/O.CHERIYOMANA NAIR, AGED ABOUT 75 YEARS,
VADEKARA HOUSE, KURUVANGAD AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
10 PADMINI AMMA
D/O.CHERIYOMANA NAIR, AGED 60 YEARS,
UNNYAM VEETTIL, NADUVANNUR AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
11 LATHA
AGE NOT KNOWN, D/O.NARAYANAN NAIR,
THAZHE EDAVALATH KURUVANGAD AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
12 KUMARI
D/O.NARAYANAN NAIR, AGE NOT KNOWN,
THAZHE EDAVALATH KURUVANGAD AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
13 SREEJA
D/O.NARAYANAN NAIR, AGE NOT KNOWN,
THAZHE EDAVALATH KURUVANGAD AMSOM DESOM,
KOYILANDY TALUK, KOZHIKKODE DISTRICT - 673 614.
OP(C).No.1999 OF 2020
14 BINDU
D/O.NARAYANAN NAIR, AGE NOT KNOWN,
THAZHE EDAVALATH KURUVANGAD AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O. P. (C) No.1999 of 2020
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Dated this the 18th day of January, 2021
JUDGMENT
The application to remit the Commissioner's
Report and Plan filed by the plaintiff-petitioner,
was dismissed by the trial court, against which
this original petition has been filed.
2. The court below noticed that, the suit is
one for mandatory injunction for removal of
obstructions caused to 'D' schedule way and other
reliefs, that the encroached portion is shown
separately in the Commissioner's Report and Plan
and also that the side measurements have also been
indicated. Accordingly it was ordered that the
report need not be remitted.
O. P. (C) No.1999 of 2020
3. On the application to remit the
Commissioner's Report, the Commissioner was
examined on 17.01.2020. In the course of his
examination he has stated thus:-
"സർവവ്വേയർ നനീലമഷഷിയഷിൽ കകാണഷിചഷിരഷിക്കുന
ഭകാഗതത്ത് physical boundary യഷില.
ശരഷിയകായ കകാരര്യങ്ങൾ ഞകാൻ report
ചചെയഷിട്ടുചണ്ടെങഷിലലും അവ surveyor plan-ൽ
കകാണഷിചഷിടഷില. സർവവ്വേയറുചടെ plan ഈ
വകസഷിചല നഷിവൃതഷികത്ത് സഹകായകരമല."
4. I am of the opinion that the said deposition
of the Commissioner needs to be specifically taken
note of and appreciated as to why the commissioner
formed such an opinion and as to whether it
justifies the petitioner's contention regarding the
necessity to remit the report. However, it is to be
cautioned that I have not expressed, that the plan
and report needs to be remitted back. It would
suffice if the application is reconsidered by the
Court.
O. P. (C) No.1999 of 2020
5. Accordingly, the order impugned is set
aside. The trial court shall pass fresh orders on
the application IA 941/2019, on the basis of the
materials on record and on hearing the learned
counsel on either side.
The original petition is allowed as above.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
OP(C).No.1999 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF PLAINT IN O.S.NO.12/2013 ON
THE FILES OF MUNSIFF COURT, KOYILANDY DATED
18/01/2013.
EXHIBIT P2 PHOTOCOPY OF WRITTEN STATEMENT FILED BY 1ST
RESPONDENT IN OS 12/2013 OF MUNSIFF COURT,
KOYILANDY DATED 22/05/2013.
EXHIBIT P3 PHOTOCOPY OF COMMISSION REPORT AND PLAN NIL
DATED NIL I.A.106/13 IN OS.12/13 OF MUNSIFF
COURT, KOYILANDY.
EXHIBIT P4 PHOTOCOPY OF COMMISSION REPORT AND PLAN
DATED 17/03/2016 FILED IN I.A.1291/2015 IN
O.S.12/13 OF MUNSIFF COURT, KOYILANDY.
EXHIBIT P5 PHOTOCOPY OF COMMISSION REPORT AND PLAN
DATED 25/03/2019 FILED IN I.A.190/2017 IN
O.S.12/13 OF MUNSIFF COURT, KOYILANDY.
EXHIBIT P6 PHOTOCOPY OF WORK MEMOS ISSUED TO THE
ADVOCATE COMMISSIONER WHO PREPARED EXHIBIT
P5 REPORT.
EXHIBIT P7 PHOTOCOPY OF DEPOSITION GIVEN BY ADVOCATE
COMMISSIONER WHO FILED EXHIBIT P5 REPORT
DATED 17/01/20.
EXHIBIT P8 PHOTOCOPY OF I.A.NO.941/2019 IN O.S.12/2013
OF MUNSIFF COURT, KOYILANDY DATED
25/06/2019.
EXHIBIT P9 CERTIFIED COPY OF ORDER DATED 07/12/2020 IN
I.A.NO.941/2019 IN O.S.12/13 OF MUNSIFF
COURT, KOYILANDY.
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