Kerala High Court
Rajamma vs Thomas @ Pappachan on 6 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 6TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942
OP(C).No.1115 OF 2020
AGAINST THE ORDER DATED 29.05.2020 IN IA 2178/2019 IN OS
274/2018 OF MUNSIFF COURT, PALA
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PETITIONER:
RAJAMMA
AGED 63 YEARS
W/O.KUTTAPPAN, NEERPADIYIL HOUSE, VAYALA.P.O.,
VAYALA KARA, ELAKKAD VILLAGE, MEENACHIL TALUK,
KOTTAYAM DISTRICT, PIN-686586.
BY ADV. SRI.P.C.HARIDAS
RESPONDENTS:
1 THOMAS @ PAPPACHAN,
S/O.MATHAI, AGED 77 YEARS, KUZHIVELIL HOUSE,
VAYALA.P.O., VAYALA KARA, KADAPLAMATTOM VILLAGE,
MEENCHIL TALUK, KOTTAYAM DISTRICT, PIN-686587.
2 GIJI,
S/O.THOMAS, AGED 40 YEARS, KUZHIVELIL HOUSE,
VAYALA.P.O., VAYALA KARA, KADAPLAMATTOM VILLAGE,
MEENCHIL TALUK, KOTTAYAM DISTRICT, PIN-686587.
R1 BY ADV. SRI.GEORGEKUTTY MATHEW
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O.P.(C) No.1115 of 2020
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Dated this the 6th day of January, 2021
JUDGMENT
The dismissal of an application for issuance of
a survey commission is under challenge in this
original petition by the plaintiff.
2. The dispute involved relates to a right of
way. The plaintiff claims to have obtained an
easement by grant over plaint item no.3 way. The
plaint item no.3 is a portion of plaint item no.2
which admittedly belongs to the second defendant.
Plaint item no.2 lies a road.
3. The plaintiff filed IA 2178/2019 seeking
issuance of a survey commission to have the
property of the plaintiff (plaint item 1) measured
with reference to the document of title and also a
survey of plaint item nos.2 and 3.
4. As rightly held by the trial court, in the
nature of the claim made, measurement of plaint
item no.1 is not necessary. However, in so far as
the prayer regarding plaint item no.3 is concerned,
O.P.(C) No.1115 of 2020
it would only be in the interests of the plaintiff
that plaint item no.3 as scheduled in the plaint,
over which the plaintiff claims a right of way, be
surveyed and plotted in a plan to be prepared by
the surveyor. This would only enable the plaintiff
to secure a proper decree if ultimately he succeeds
at trial. The order impugned is liable to be
interfered with to the above extent.
In the result, this original petition is
allowed. The order impugned is set aside. IA
2178/2019 will stand allowed to the limited extent
of appointing a Commissioner with a surveyor to
have the plaint item no.3 as scheduled in the
plaint to be surveyed and plotted in a plan. I make
it clear that I have not expressed anything on the
merits of the rival contentions regarding the right
of way claimed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
OP(C).No.1115 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS.NO.274/2018
ON THE FILES OF THE MUNSIFF'S COURT, PALA.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED IN
EXHIBIT P1 SUIT.
EXHIBIT P3 TRUE COPY OF COMMISSION REPORT DATED
6.12.2018.
EXHIBIT P3(A) TRUE COPY OF THE OBJECTION TO EXHIBIT P3
REPORT FILED BY THE RESPONDENTS.
EXHIBIT P4 TRUE COPY OF THE COMMISSION REPORT DATED
7.6.2019.
EXHIBIT P4(A) TRUE COPY OF THE OBJECTION TO EXT.P4 FILED
BY THE RESPONDENTS.
EXHIBIT P5 TRUE COPY OF I.A.NO.2178/2019 IN O
.S.NO.274/2018.
EXHIBIT P6 TRUE COPY OF THE OBJECTION TO EXT.P5.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 29.5.2020 IN
I.A.NO.2178/2019 IN O.S.NO.274/2018 OF THE
MUNSIFF'S COURT, PALA.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(a) TRUE TYPED COPY OF THE COMMON JUDGMENT IN
OSNO.2/2017 AND O.S.11/2017 IN THE FILES OF
MUNSIFF COURT PALAI.
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