Panayanthatta Kunjiraman ... vs Kozhummal Chattadi Valsala
2021 Latest Caselaw 87 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

                       OP(C).No.1657 OF 2015(O)

    AGAINST THE JUDGMENT IN O.S.NO.177/2012 OF MUNSIFF COURT,
                            PAYYANNUR


PETITIONER:

               PANAYANTHATTA KUNJIRAMAN NAMBIAR
               AGED 75 YEARS, S/O.NARAYANAN NAIR,
               AGRICULTURIST KOROM AMSOM AND DESOM
               P.O.KOROM, KANNUR - 670 307.

               BY ADV. SRI.MAHESH V RAMAKRISHNAN

RESPONDENTS:

      1        KOZHUMMAL CHATTADI VALSALA
               D/O.MEENAKSHI AMMA, AGED 49 YEARS,
               VELLIKKET, KOROM AMSOM, KANAYI DESOM,
               P.O.KANAYI, KANNUR - 670 307.

      2        NALLOORU EDAKKAPRATH THAMPAN NAMBIAR
               S/O.NARAYANAN NAMBIAR, AGED 58 YEARS,
               VELLIKKET, KOROM AMSOM, KANAYI DESOM,
               P.O.KANAYI, KANNUR - 670 307.

      3        PERICHAZHI DEVAKI
               W/O.LATE CHALIL VALAPPIL KRISHNAN,
               AGED 55 YEARS,
               VELLIKKET, KOROM AMSOM, KANAYI DESOM,
               P.O.KANAYI, KANNUR - 670 307.

      4        PERICHAZHI VIJAYAN
               S/O.LATE CHALIL VALAPPIL KRISHNAN,
               AGED 33 YEARS,
               VELLIKKET, KOROM AMSOM, KANAYI DESOM,
               P.O.KANAYI, KANNUR - 670 307.

      5        PERICHAZHI AJAYAN
               S/O.LATE CHALIL VALAPPIL KRISHNAN,
               AGED 30 YEARS,
               VELLIKKET, KOROM AMSOM, KANAYI DESOM,
               P.O.KANAYI, KANNUR - 670 307.
     O.P.(C) No.1657/2015            2




      6      PERICHAZHI SUMITHRAN
             S/O.LATE CHALIL VALAPPIL KRISHNAN,
             AGED 26 YEARS,
             VELLIKKET, KOROM AMSOM, KANAYI DESOM,
             P.O.KANAYI, KANNUR - 670 307.

      7      CHALIL RAVINDRAN
             S/O.ANANDAN, AGED 53 YEARS,
             VELLIKKET, KOROM AMSOM, KANAYI DESOM,
             P.O.KANAYI, KANNUR - 670 307.

      8      KAIPRAVAN KRISHNAN NAIR
             S/O.KUNHAPPAN, AGED 65 YEARS,
             VELLIKKET, KOROM AMSOM, KANAYI DESOM,
             P.O.KANAYI, KANNUR - 670 307.

      9      KUNNIKKURUVAN DEVAKI
             D/O.LATE KUTTIADAN KORAN,
             VELLIKKET, KOROM AMSOM,KANAYI DESOM,
             P.O.KANAYI, KANNUR - 670 307.

             R1-2, R8 BY ADV. SRI.M.SASINDRAN

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C) No.1657/2015                3




                           JUDGMENT

Dated this the 4th day of January 2021

This Original Petition is filed by the plaintiff being aggrieved

by the impugned order dated 8.6.2015 passed by the learned

Munsiff, Payyannur in O.S.No.177 of 2012. The suit filed is one

for injunction seeking to restrain the respondents/defendants

from trespassing into the plaint schedule 53 cents of land.

During the course of the suit, the petitioner applied for issue of

Commission to ascertain and identify the plaint property on the

basis of pattayam obtained in his favour as well as to identify the

property transferred to third party from the pattayam land.

2. The Commissioner after visiting the property

submitted Exhibit P2 Commission report and plan to which the

petitioner took strong objection and sought remittal on the

ground that the property was not precisely identified with

reference to pattayam as well as other title deeds in favour of the

parties. After hearing both parties, the court below refused to

order remittal of the commission report holding that the

Commissioner clearly identified the property as per the records

with the assistance of the Taluk Surveyor.

3. The plaintiff is seriously aggrieved by the finding of

the court below as well as refusal to order remittal of the report.

4. I heard the counsel appearing on both sides.

5. The learned counsel for the petitioner submitted that

the petitioner did not get sufficient opportunity to substantiate

objections taken to commission report by examining the

Commissioner. On the other hand, the learned counsel for the

respondents submitted that the plan has been prepared by the

Commissioner in accordance with title deeds and there is no

need to interfere with the impugned order.

6. I am of the opinion that the submission made by the

petitioner's counsel appears to be reasonable. In order to

substantiate objections taken to the commission report, an

opportunity should be given to the petitioner to examine the

Commissioner.

7. In the nature of view that has been taken, the

impugned order cannot be allowed to sustain. It is liable to be

set aside.

In the result, the O.P.(C) No.1657 of 2015 is allowed and

the impugned order is set aside. The petitioner/plaintiff will get

an opportunity to examine the Commissioner before the court

below and the court will decide the issue as to identify in

accordance with law. Since the suit being of the year 2012, the

court below shall take all necessary steps to expedite the trial of

the suit within a period of six months from the date of receipt of

a certified copy of this order.

Sd/-

T.V.ANILKUMAR JUDGE csl

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 15.10.2012 IN OS NO.177/2012 OF MUNSIFF COURT, PAYYANNUR

EXHIBIT P2 TRUE COPY OF THE REPORT AND PLAN DATED 30.1.2015 SUBMITTED BY THE ADVOCATE COMMISSIONER

EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT DATED 18.2.2015 FILED IN SUPPORT OF I.A.

NO.344/2015

EXHIBIT P4 TRUE COPY OF THE COUNTER DATED 6.3.2015 SUBMITTED BY THE RESPONDENTS IN I.A.

NO.344/2015

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 8.6.2015 IN I.A.NO.344/2012 IN O.S.NO.177/2012