Mathew vs Jose
2021 Latest Caselaw 3140 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

            THE HONOURABLE MR. JUSTICE SATHISH NINAN

    THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                     OP(C).No.1710 OF 2020

AGAINST THE ORDER IN I.A.NO. 542/2018 IN O.S.920/2015 OF MUNCIFF
 COURT CHALAKKUDY AND IN CMA 48/2019 OF SUB COURT,IRINJALAKUDA

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PETITIONER/1ST PLAINTIFF:

             MATHEW
             AGED 75 YEARS
             S/O. KANNAMPUZHA VEETTIL OUSEPH, KORATTY
             KIZHAKKUMMURI VILLAGE, MANGALASSERI DESOM, NEAR
             ST.THOMAS CHURCH, CHALAKKUDY TALUK, - 680308,

             BY ADVS.
             SRI.SIRAJ KAROLY
             SHRI.JAVED HAIDER

RESPONDENT/RESPONDENT:

             JOSE
             AGED 66 YEARS,
             S/O.MATTAPPILLY VEETTIL VARGHESE, KORATTY
             KIZHAKKUMMURI VILLAGE, MANGALASSERI DESOM, NEAR ST.
             THOMAS CHURCH, CHALAKKUDY TALUK, 680308.

             R1 BY ADV. SRI.K.N.CHANDRABABU

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                     SATHISH NINAN, J.
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                O. P. (C) No.1710 of 2020
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          Dated this the 28th day of January, 2021

                          JUDGMENT

The application seeking remission of the

Commissioner's Report and Plan was dismissed by the trial court. Though the order was not appealable in

nature, the petitioner filed an appeal as CMA

48/2019 before the Court which was dismissed. The

petitioner challenges the said orders.

2. The suit is one for fixation of boundary and

recovery of possession. As is evident from the

order passed by the trial court on the IA, both the

plaintiff and the defendants were in union in their

opinion that the report and plan are not correct.

Both sides pointed out that there is a prior deed

bearing No.373/1956 based on which the properties

to be identified. However, the trial court

dismissed the application for the reason that the

original application did not contain such a prayer.

I am unable to accept the reason given by the trial

court. Even without any objection by the parties O. P. (C) No.1710 of 2020

the court could look into the report and plan to

see if it could be accepted or not. Both sides

having conceded, the report and plan are liable to

be remitted for identification of the properties.

Both parties could file work memos regarding the

matters to be ascertained.

The order impugned is accordingly set aside.

The trial court shall pass fresh orders on the

applications. The original petition is allowed as

above.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy//

P.S. to Judge OP(C).No.1710 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.920 OF 2016 ON THE FILE OF THE MUNSIFF COURT, CHALAKKUDY DATED 27.11.2015.

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT CUM COUNTER CLAIM FILED BY THE DEFENDANT DATED 19.10.2016.

EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT IN OS 920 OF 2015 DATED 12.12.2017.

EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED TO SET ASIDE THE COMMISSION REPORT DATED 20.02.2018.

EXHIBIT P5 TRUE COPY OF THE ORDER IN IA 542 OF 2018 IN OS 920 OF 2015 DATED 19.06.2019.

EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BEFORE THE SUB COURT, IRINJALAKUDA AS CMA 48 OF 2019 APPEAL FILED BEFORE THE SUB COURT, IRINJALAKUDA AS CMA 48 OF 2019.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN CMA 48 OF 2019 DATED 13.07.2020.

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