Kerala High Court

Maradi Janu vs Melodan Omana Amma on 29 October, 2021

O.P. (Civil) No. 254 of 2017    -1-


            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
   FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                     OP(C) NO. 254 OF 2017
    AGAINST THE ORDER IN R.P. 3010 of 2016 IN OS 114/2013 OF
               MUNSIF COURT, KUTHUPARAMBA, KANNUR
  PETITIONER/S:

            MARADI JANU
            AGED 60 YEARS, D/O.LATE KELAPPAN, PENSIONER,
            MARADI HOUSE, VEKKALAM AMSOM DESOM, P.O.VAYANNUR,
            THALASSERY TALUK, KANNUR DISTRICT.
            BY ADV SRI.K.P.HARISH
            ADV. ROSIN


  RESPONDENT/S:

      1     MELODAN OMANA AMMA
            AGED 77 YEARS, W/O.LATE GOVINDAN NAMBIAR, NO
            OCCUPATION, KARINCHOTH, VEKKALAM AMSOM DESOM,
            P.O.VAYANNUR, IRITTY TALUK.
      2     DAUGHTER KARTHIAYANI
            AGED 60 YEARS
            NO OCCUPATION, KARINCHOTH, VEKKALAM AMSOM DESOM,
            P.O.VAYANNUR, IRITTY TALUK.
      3     SISTER MADHAVI
            AGED 58 YEARS
             NO OCCUPATION, KARALATH HOUSE, MUZHAKKUNNU
            AMSOM, PALA DESOM, KAKKEYANGAD P.O., MUZHAKKUNNU.
      4     SISTER VILASINI
            AGED 54 YEARS
            NURSING ASSISTANT, THOLAMBRA AMSOM DESOM,
            P.O.THOLAMBRA, THALASSERY TALUK.
      5     BROTHER PEETHAMBARAN
            AGED 52 YEARS
            EX-SERVICE MAN, NAMBYODE, MANATHANA VILLAGE,
            P.O.PERUMPUNNA, THALASSERY TALUK.
      6     BROTHER PADMANABHAN
            AGED 47 YEARS
            COMPANY EMPLOYEE, SIVAPURAM AMSOM
            DESOM,P.O.SIVAPURAM.
      7     BROTHER VALSARAJAN
 O.P. (Civil) No. 254 of 2017          -2-


              AGED 42 YEARS
              COOLIE, VEKKALAM AMSOM DESOM, P.O.VAYANNUR,
              THALASSERY TALUK.
      8       BROTHER PREMARAJAN
              AGED 38 YEARS
              DRAFTSMAN, VEKKALAM AMSOM DESOM,
              P.O.VAYANNUR,THALASSERY TALUK.
      9       MARADI RAJAN
              AGED 52 YEARS, (DIED), S/O.LATE KELAPPAN, MARADI
              HOUSE, VEKKALAM AMSOM DESOM, P.O.VAYANNUR,
              THALASSERY TALUK, KANNUR DISTRICT.
      10      NAROTH NARAYANI SULU
              AGED 47 YEARS
              COOLIE, W/O.LATE MARADI RAJAN, MARADI HOUSE,
              VEKKALAM AMSOM DESOM, P.O.VAYANNUR, THALASSERY
              TALUK, KANNUR DISTRICT.
      11      SON SURAJ
              AGED 30 YEARS
              COOLIE, MARADI HOUSE, VEKKALAM AMSOM DESOM,
              P.O.VAYANNUR, THALASSERY TALUK, KANNUR DISTRICT.
      12      BROTHER SUJESH
              AGED 28 YEARS
              COOLIE, MARADI HOUSE, VEKKALAM AMSOM
              DESOM,P.O.VAYANNUR, THALASSERY TALUK, KANNUR
              DISTRICT.
      13      SISTER SUJINA
              AGED 25 YEARS
              HOUSE WIFE, MARADI HOUSE, VEKKALAM AMSOM DESOM,
              P.O.VAYANNUR, THALASSERY TALUK, KANNUR DISTRICT.
              BY ADV SRI.CIBI THOMAS


       THIS     OP   (CIVIL)    HAVING      COME   UP    FOR    ADMISSION   ON
  29.10.2021,    THE    COURT    ON    THE    SAME      DAY    DELIVERED    THE
  FOLLOWING:
 O.P. (Civil) No. 254 of 2017          -3-




                              JUDGMENT

This original petition was filed under Article 227 of the

Constitution of India, challenging the order passed by the Munsiff's

court, Kuthuramabu in I. A. No. 265 of 2016 in O. S. No. 114 of 2013

dated 05.04.2016 and review application No. 3010 of 2016 in I. A.

265 of 2016 in O. S. No. 114 of 2013 dated 31.08.2016, filed by the

petitioner / 1st defendant in the suit.

2. As per the order in I. A. No. 265 of 2016, the relief sought for

by the original petitioner to remit the Commission report to the

Advocate Commissioner was declined and even though a review was

filed, it was also declined on the ground that the original petitioner has

not made out any case for remittance of the Commission report, and

review of the order passed in the Interlocutory Application.

3. The original petitioner is the 1 st defendant in O. S. 114 of

2013 and the petitioner in I. A. No. 265 of 2016 on the files of the

Munsiff's court, Kuthuparamba. The suit is filed for fixation of

boundary and permanent prohibitory injunction. The petitioner had

filed a written statement pointing out that there is undivided property

of the petitioner in the southern side of the plaint schedule property,

and according to the petitioner, the plaintiff / respondent is trying to

grab the property by unnecessarily filing the above suit.

4. In the suit an Advocate Commissioner was appointed and the

Commissioner visited the property and filed a report and plan.

5. According to the original petitioner, the prayer in the suit is

for fixation of boundary in respect of 2.790 acres of property, but as

per the commission report and plan, the total extent of the plaint

schedule property is shown as 3.00 acres.

6. The case projected by the original petitioner is that the

Commissioner has added excess land into the plaint schedule property,

without any identification of the adjacent lands with the aid of the title

deeds, and therefore, the Advocate Commissioner has travelled

beyond the scope of the Commission warrant, as also the suit.

7. The petitioner accordingly filed I. A. No. 265 of 2016 under

Order XXVI Rule 10 of the Code of Civil Procedure, 1908 for

remitting the report and plan to the same Commissioner for a fresh

report and plan.

8. However, the Munsiff has passed Ext. P6 order in I. A. No.

265 of 2016 holding that in the written statement there is no case for

the petitioner and others that the respondents are possessing their

property, and further that no counterclaim is raised and therefore

without any pleading in regard to the excess property found out by the

Advocate Commissioner, the claim cannot be entertained as it is

beyond the scope of the suit. It was aggrieved by the said order, a

review petition was filed and in the review petition also, the Munsiff's

court found that in the written statement, what is pleaded by the

petitioner is that on the southern boundary of the plaint schedule

property, there is some extent of property owned by Kelappan, the

father of the defendants.

9. However, in I. A. No. 265 of 2016 filed seeking remission of

the report to the Advocate Commissioner, what has been stated is that

84 cents of property of the father of the petitioner is now possessed by

the respondents / plaintiffs and that the property must be measured. In

the review also the Munsiff has clearly found that there is no pleading

with regard to the allegation and there is no counter claim in the

written statement in respect of any property held by the plaintiffs and

therefore there is no error apparent on the face of record liable to be

reviewed.

10. I have heard learned counsel for the petitioner Adv. Rosin

and perused the pleadings and material on record.

11. The sole question to be considered is whether any

interference is required against the factual findings rendered by the

Munsiff's court in the applications filed by the original petitioner.

12. It is an admitted fact that the petitioner did not have any case

before the Munsiff's court while filing the written statement that the

plaintiffs in the suit are holding any property to which the petitioner

and other defendants have any claim. A blunt statement is made that

on the southern side of the property against which the plaintiffs have

sought for fixation of boundary, there is some property belonging to

the father of the petitioner namely Kelappan.

13. The Munsiff has clearly found that the petitioner has not

raised any counterclaim in the written statement or made any specific

pleading with regard to any property in possession belonging to the

original petitioner and the other defendants in the possession of the

plaintiffs.

14. Therefore the court below has found that there is no

requirement of remission of the Commission report since the

Commissioner has reported that the plaintiffs are in possession of 3.00

acres of property and since the original petitioner and the other

defendants are not having any claim over any property held by the

plaintiffs and the defendants.

15. In my considered view these are all factual findings made

on the basis of records and the material pleadings available before the

court below, and on a mere asking a commission report cannot be

remitted. On an analysis of the facts and circumstances I am

undoubtedly of the opinion that the court below was right in taking a

view that the petitioner has not made any pleading in respect of any of

his properties in the possession of the plaintiff, and therefore merely

because the advocate commissioner has reported excess property in

addition to the plaint schedule in the possession of the plaintiff, that

would not enable the petitioner to seek remittance of the commission

report for drawing up of a afresh report.

16. In that view of the matter, I do not think the petitioner has

made out any case for interference in the orders passed by the

Munsiff, exercising the supervisory jurisdiction conferred under

Article 227 of the Constitution of India.

Needless to say, the original petition fails. Accordingly, it is

dismissed.

Sd/-

SHAJI P. CHALY JUDGE

///TRUE COPY///

P. A. TO JUDGE

APPENDIX OF OP(C) 254/2017 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S.NO.114/2013 ON THE FILE OF THE MUNSIFF COURT, KUTHUPARAMBA.

EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO.114/2013 ON THE FILE OF THE MUNSIFF COURT, KUTHUPARAMBA.

EXHIBIT P3 A TRUE COPY OF THE REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER 03-12-2015 IN O.S.NO.114/2013 ON THE FILE OF THE MUNSIFF COURT, KUTHUPARAMBA.

EXHIBIT P4 A TRUE COPY OF THE APPLICATION AND AFFIDAVIT DATED 15-01-2016 FILED UNDER SECTION 26 RULE 10 OF CPC NUMBERED AS I.A.NO.265/2016 IN O.S.NO.114 OF 2013 ON THE FILE OF THE MUNSIFF COURT, KUTHUPARAMBA.

EXHIBIT P5 A TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS IN I.A.NO.265/2016 IN O.S.NO.114 OF 2013 ON THE FILE OF THE MUNSIFF COURT, KUTHUPARAMBA.

EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 05-04-

2016 IN I.A.NO.265/2016 IN O.S.NO.114 OF 2013 ON THE FILE OF THE MUNSIFF COURT, KUTHUPARAMBA.

EXHIBIT P7 A TRUE COPY OF THE REVIEW APPLICATION NO.3010 OF 2016 IN I.A.NO.265/2016 IN O.S.NO.114 OF 2013 ON THE FILE OF THE MUNSIFF COURT, KUTHUPARAMBA.

EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 31-08-