Kerala High Court
V.K. Varghese vs Annama Thomas @ Lissy on 8 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
OP(C).No.618 OF 2018(O)
AGAINST THE ORDER DATED 19-01-2018 IN I.A.NO.81/2017 IN O.S.
NO.169/2010 OF MUNSIFF COURT, RANNI
PETITIONER:
V.K. VARGHESE,
KALLURUMPIL,
EDATHARA, KUMARAMPEROOR,
THEKKEKARA MURI, VADASSERIKKARA,
RANNY, REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER, SAMUEL ABRAHAM,
KALLURUMPIL,
EDATHARA, KUMARAMPEROOR,
THEKKEKARA MURI,
VADASSERIKKARA, RANNY.
BY ADVS.SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
RESPONDENTS:
1 ANNAMA THOMAS @ LISSY,
W/O. P. T. CHACKO @ SOMAN,
NIRAYANNOOR HOUSE,
KUMARAMPEROOR,
THEKKEKARA MURI,
VADASSERIKKARA VILLAGE,
RANNY TALUK-689645
2 AJIKUMAR,
S/O. (LATE) SATHYAPALAN,
KDAMANKUNNU PADINJARETHIL,
KUMARAMPEROOR,
THEKKEKARA MURI,
VADASSERIKKARA VILLAGE,
RANNY TALUK-689645
3 ANILKUMAR,
S/O. (LATE) SATHYAPALAN,
O.P.(C)No.618/2018
-:2:-
KDAMANKUNNU PADINJARETHIL,
KUMARAMPEROOR,
THEKKEKARA MURI,
VADASSERIKKARA VILLAGE,
RANNY TALUK-689645
4 ANUKUMAR,
S/O. (LATE) SATHYAPALAN,
KDAMANKUNNU PADINJARETHIL,
KUMARAMPEROOR,
THEKKEKARA MURI,
VADASSERIKKARA VILLAGE,
RANNY TALUK-689645
5 AJEESHKUMAR,
S/O. (LATE) SATHYAPALAN,
KDAMANKUNNU PADINJARETHIL,
KUMARAMPEROOR,
THEKKEKARA MURI,
VADASSERIKKARA VILLAGE,
RANNY TALUK-689645
6 SNDP VADASSERIKKARA SAKHA NO. 2251,
REPRESENTED BY ITS SECRETARY,
NEAR M.S HIGHER SECONDARY SCHOOL,
RANNI VILLAGE AND TALUK-689645
7 THE SECRETARY,
SNDP VADASSERIKKARA SAKHA NO. 2251,NEAR M.S
HIGHER SECONDARY SCHOOL,
RANNI VILLAGE AND TALUK-689645
8 SOSAMMA,
W/O. (LATE) UNNI, PUTHENPARAMPIL HOUSE (ALSO
KNOWN AS VALLAPURACKAL HOUSE), KUMARAMPEROOR,
THEKKEKARA MURI, VADASSERIKKARA VILLAGE,
RANNY TALUK-689645
9 THE STATE OF KERALA,
REPRESENTED BY DISTRICT COLLECTOR,
PATHANAMTHITTA-689645
10 THE VADASSERIKKARA GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, OFFICE OF
VADASSERIKKARA GRAMA PANCHAYAT,
VADASSERIKKARA, RANNY-689645
11 CHACKO THOMAS,
NIRAYANNOOR HOUSE, KUMARAMPEROOR, THEKKEKARA
O.P.(C)No.618/2018
-:3:-
MURI, VADASSERIKKARA VILLAGE,
RANNY TALUK-689645
12 ANNA MERIN CHACKO,
NIRAYANNOOR HOUSE, KUMARAMPEROOR, THEKKEKARA
MURI, VADASSERIKKARA VILLAGE,
RANNY TALUK-689645
R10 BY ADVS. SRI.PHILIP J.VETTICKATTU
SRI.VINEETH KURIAKOSE
R9 BY SRI. JOHNSON M.I. (SR.G.P.)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
06-01-2021, THE COURT ON 08-01-2021 DELIVERED THE
FOLLOWING:
O.P.(C)No.618/2018
-:4:-
Dated this the 8th day of January,2021
J U D G M E N T
Plaintiff in O.S.No.169/2010 before Munsiff
Court, Ranni, challenges impugned order dated
19.01.2018 passed by that court dismissing
I.A.No.81/2017 filed for setting aside the
commission report and plan, invoking Article 227
of the Constitution of India.
2. I heard the learned counsel for the
petitioner, learned Government Pleader appearing
for respondent No.9 and learned standing counsel
for respondent No.10, Panchayat. Respondent Nos.1
to 8, 11 and 12 are not represented.
3. Dispute in the suit relates to plaint
schedule item No.6 public way, which is a
puramboke land vested in respondent No.10 and
managed by respondent No.9. Petitioner occupies
item No.1 to the immediate south of item No.6. The
occupy item No.2 which is their land on the
immediate north of item No.6.
4. The allegation made by petitioner/
plaintiff against defendant Nos.1 and 2 is that
they encroached into item No.6 reducing a portion
O.P.(C)No.618/2018
thereof into their wrongful possession. The
encroached portion in item No.6 is shown in the
plaint as item No.7. The petitioner, in the above
circumstances filed the suit for a decree
directing defendant Nos.1 and 2 to remove the
encroachment and surrender possession thereof to
defendant Nos.11 and 12.
5. Defendant Nos.1 and 2 in their written
statement contested that no part of item No.6 was
encroached or possessed by them. It is contended
that the encroachment was, in fact, at the
instance of petitioner and the encroached portion
lies immediately to the north of item No.1.
6. The court below deputed an Advocate
Commissioner to locate and identify the encroached
portion and prepare a plan with the aid of Taluk
Surveyor. The report and plan were submitted
before the court below indicating that a portion
of item No.6 identified in letters Y1..X1..G2..V1
was encroached upon by the petitioner.
7. Being aggrieved by the report and plan,
petitioner filed I.A.No.81/2017 seeking to set
aside the report and plan and remit the same to
Commissioner for fresh investigation.
O.P.(C)No.618/2018
8. The court below before passing the
impugned order and as part of the enquiry,
examined the Taluk Surveyor, the Advocate
Commissioner and a Photographer respectively as
PWs.1 to 3 and considered a few documents produced
before it. After hearing the parties and examining
the evidence on record, the court below did not
find any ground to set aside the report and plan
and it took the view that the encroached area as
delineated in Ext.C1(b) plan was precisely located
with the aid of survey plan.
9. One among the contentions urged by the
learned counsel for the petitioner is that the
alleged encroached area was not properly located
inasmuch as the surveyor failed to ensure that the
position of survey stone from which the
measurements were taken was unmistakable. If this
argument is correct, in my opinion, Ext.C1(b) plan
cannot sustain and consequently, the portion
identified as encroached portion cannot be said to
be precisely located.
10. It is also contended by the learned
counsel for the petitioner that area identified in
letters Y1..X1..G2..VI was not located with the
O.P.(C)No.618/2018
aid of title deeds and there is lot of confusion
as to direction of lands, as may be evident from
the mahazar prepared by the Advocate Commissioner.
11. Another submission made by the
petitioner's counsel is that measurements taken
were not precise and further those recorded were,
did not tally with the area of alleged
encroachment. A few other objections were also
taken.
12. I find from the impugned order that
objections raised were considered by the court
below. This being a proceeding under Article 227
of the Constitution of India, this Court is not
supposed to re-appreciate facts and evidence,
except to examine whether any patent or manifest
illegality has been committed by the court below
in passing the impugned order.
13. On hearing the learned counsel for the
petitioner and the learned Government Pleader, I
do not find for the present that the impugned
order discloses any patent or manifest illegality.
That, however, does not mean that the finding of
the court below that the encroached area was
correctly located and Ext.C1(b) plan is correct,
O.P.(C)No.618/2018
is conclusive.
14. The learned counsel for the petitioner
drew my attention to the evidence given by PWs1
and 2 as to the starting point from where the
survey measurements began and contended that their
versions are mutually contradictory. According to
the learned counsel for the petitioner,
unmistakable point before starting survey
measurements was not fixed by the surveyor. This
is essentially a vital aspect which requires to be
meticulously examined on evidence. So also, some
confusion which exists with respect to the
directions of land and difference in measurements
also require to be reconsidered, it is contended.
15. Though no patent illegality could be
discerned from the impugned order at this stage
and there is no need at present to call for a
fresh report and plan, I am of the opinion that
decision taken by the court below as to
correctness of plan ought to be left open to be
reconsidered at the later stage of the suit, in
the light of the fact that the court will be in a
better position to understand the contentions of
parties and appreciate the evidence brought on
O.P.(C)No.618/2018
record in the course of trial of the suit.
In the result, original petition is disposed
of directing the trial court to complete trial of
the suit and proceed to decide issues involved
therein after giving opportunities to the
plaintiff to substantiate his objections to the
plan and report. The defendants in the suit shall
also be given sufficient opportunity to
substantiate their contentions. It is made clear
that the impugned order shall not stand in the way
of the court below reconsidering the objections
raised by the petitioner/plaintiff to the report
and plan and taking fresh decision in the matter,
in accordance with facts, evidence and law. This
being the suit of 2010, efforts shall be taken to
see that it is disposed of within a period of six
months from the date of receipt of a certified
copy of this judgment.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
O.P.(C)No.618/2018
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY OF
PETITIONER IN FAVOUR OF SAMUEL ABRAHAM
THAT IS ALREADY ON RECORD BEFORE THE
MUNSIFF'S COURT, RANNY.
EXHIBIT P2 TRUE COPY OF THE PLAINT IN OS 169 OF
2010 BEFORE THE MUNSIFF'S COURT, RANNY.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY RESPONDENTS 1 AND 2 IN OS 169
OF 2010 BEFORE THE MUNSIFF'S COURT,
RANNY.
EXHIBIT P4 TRUE COPY OF THE PLAINT IN OS 36 OF
2009 BEFORE THE MUNSIFF'S COURT, RANNY.
EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT
FILED IN OS 36 OF 2009 BEFORE THE
MUNSIFF'S COURT, RANNY.
EXHIBIT P6 TRUE COPY OF THE IA 1012 OF 2015 IN OS
169 OF 2010 BEFORE THE MUNSIFF'S COURT,
RANNY.
EXHIBIT P7 TRUE COPY OF THE WORK MEMO FILED BY
RESPONDENTS 1 AND 2 BEFORE THE ADVOCATE
COMMISSIONER.
EXHIBIT P8 TRUE COPY OF THE REPORT, MAHAZAR AND
THE PLAN FILED BY THE ADVOCATE
COMMISSIONER IN IA 1012 OF 2015 IN OS
169 OF 2010 BEFORE THE MUNSIFF'S COURT,
RANNY.
EXHIBIT P9 TRUE COPY OF THE IA 81 OF 2017 IN OS
169 OF 2010 BEFORE THE MUNSIFF'S COURT,
RANNY.
EXHIBIT P10 TRUE COPY OF THE OBJECTION FILED BY
RESPONDENTS 1 AND 2 TO EXHIBIT P9.
EXHIBIT P11 TRUE COPY OF THE PHOTOGRAPHS PRODUCED
BY THE PETITIONER BEFORE THE MUNSIFF'S
COURT, RANNY.
EXHIBIT P12 TRUE COPY OF THE DEPOSITION OF PW1
O.P.(C)No.618/2018
(SURVEYOR) IN IA 81 OF 2017 IN OS 169
OF 2010 BEFORE THE MUNSIFF'S COURT,
RANNY.
EXHIBIT P13 TRUE COPY OF THE DEPOSITION OF PW2
(ADVOCATE COMMISSIONER) IN IA 81 OF
2017 IN OS 169 OF 2010 BEFORE THE
MUNSIFF'S COURT, RANNY.
EXHIBIT P14 TRUE COPY OF THE DEPOSITION OF PW3
(PHOTOGRAPHER) IN IA 81 OF 2017 IN OS
169 OF 2010 BEFORE THE MUNSIFF'S COURT,
RANNY.
EXHIBIT P15 TRUE COPY OF THE ORDER DATED 19.01.2018
IN IA 81 OF 2017 IN OS 169 OF 2010
BEFORE THE MUNSIFF'S COURT, RANNY.
RESPONDENTS' EXHIBITS: NIL
