Kerala High Court
Maruthukunnel George Cyriac vs Kaviyil Elsamma Cheriyan on 5 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 5TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
OP(C).No.11 OF 2021
AGAINST THE ORDER IN IA 2/2020 IN OS 232/2014 DATED 10-12-2020
OF MUNSIFF COURT, HOSDRUG
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PETITIONER/APPLICANT/DEFENDANT:
MARUTHUKUNNEL GEORGE CYRIAC
AGED 61 YEARS
S/O. KURUVILA, RESIDING AT MUNAYAMKUNNU, KANNIVAYAL
(PO), KASARAGOD DISTRICT.
BY ADVS.
SHRI.JAWAHAR JOSE
SMT.CISSY MATHEWS
SRI.JAISON ANTONY
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 KAVIYIL ELSAMMA CHERIYAN
AGED 63 YEARS
W/O. CHERIYAN, PULINGOM AMSAM AND DESOM, EDAVARAMBA
(P.O) THALIPARAMBA TALUK,
KANNUR DISTRICT PIN 670 511
2 ELAVUKUNNEL SOPHIYAMMA MATHEW,
AGED 56 YEARS
W/O. MATHEW, AALAKKOD AMSAM, ARANGAM DESOM,
THALIPARAMBA TALUK, KANNUR DISTRICT, PIN 670 511
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O. P. (C) No.11 of 2021
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Dated this the 5th day of January, 2021
JUDGMENT
Dismissal of an application seeking to set
aside the Commissioner's Report and Plan or to
remit the same back to the Commissioner, is under
challenge by the defendant-petitioner in the
application.
2. The suit is one for partition. The defendant
raised a plea of ouster. Additional issue No.6
raised by the court reads thus:-
"Whether the title of any of the plaintiffs over the plaint
schedule properties are lost by ouster, adverse possession and
limitation ?"
3. According to the petitioner-defendant, he
had submitted a work memo requiring the
Commissioner to ascertain the age of the trees in
the property, but the same was not reported by the
Commissioner. In addition, though the Commissioner
was also required to note the various
O. P. (C) No.11 of 2021
structures/improvements in the property and also
its value, the same has also not been reported by
the Commissioner, grieves the petitioner.
4. Sri.Jawahar Jose, learned counsel for the
petitioner-defendant would submit that though the
Commissioner has reported that about 1100 rubber
trees are planted in the property along with Teak
and Mahagani trees, its age have not been stated.
The age of the trees has much relevance with
respect to the defendant's plea of ouster, submits
the learned counsel. It is to be noticed that even
according to the defendant, the rubber trees were
re-planted in the year 2004 or 2005 which is within
12 years from the suit. Therefore, the age as such
may not be of any significance. It is open for the
petitioner-defendant to substantiate his plea of
ouster with other materials. The Commissioner's
report need not be remitted for the said purpose.
5. As regards the request for remission of the
report to ascertain the value of the improvements,
as rightly noticed by the trial court, it is
something to be considered in the final decree
O. P. (C) No.11 of 2021
proceedings. If the plea of ouster is accepted, the
said course will not be necessary at all.
The order impugned suffers from no illegality
or error of jurisdiction warranting interference in
exercise of powers in supervisory jurisdiction. The
Original Petition fails and is accordingly
dismissed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
OP(C).No.11 OF 2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ISSUES AND ADDITIONAL
ISSUES FRAMED BY THE COURT IN O.S NO.
232/2014 AS PER ORDER DATED 20-02-2015 AND
1-3-2016
EXHIBIT P2 TRUE COPY OF THE WORK MEMO FILED BY THE
PETITIONER BEFORE THE COURT ON 28-09-2017
EXHIBIT P3 TRUE COPY OF THE REPORT AND PLAN OF THE
ADVOCATES COMMISSIONER DATED 17-08-2019
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 10-12-2020 IN
I.A NO. 2/2020 IN O.S NO. 232/2014 ON THE
FILES OF THE MUNSIFF'S COURT, HOSDURG.
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