Ayishumma vs M.K.Shamsudheen
2021 Latest Caselaw 18264 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                        OP(C) NO. 310 OF 2019
    OS 354/2013 OF MUNSIFF COURT, OTTAPPALAM, PALAKKAD
PETITIONER/S:

               AYISHUMMA
               AGED 85 YEARS
               W/O. LATE AYIDRU, NEERANI VEEDU,
               CHERPULASSERY AMSOM AND POST,
               PANNIYAMKURISSI DESOM, OTTAPALAM TALUK,
               REPRESENTED BY THE POWER OF ATTORNEY HOLDER
               MUHAMMED, 62 YEARS, S/O. LATE AYIDRU, NEERANI
               VEEDU, CHERPULASSERY AMSOM AND POST,
               PANNIYAMKURISSI DESOM, OTTAPALAM TALUK.
               BY ADVS.
               R.SREEHARI
               SRI.SACHIN VYAS
               SRI.P.B.KRISHNAN
RESPONDENT/S:

    1          M.K.SHAMSUDHEEN
               AGED 47 YEARS
               S/O. KUNJAYAMU, KOTTOLU ANAPARAMBIL PAZHIJI
               VILLAGE AND POST, THALAPPILLY TALUK, THRISSUR
               DISTRICT 680 542.
    2          ALIMA,
               W/O. KUNJUMOIDEEN, CHEKKUTHANAKATH VEEDU,
               KARUMANAMKURUSSI POST,
               VEERAMANGALAM AMSOM, KRUMANAMKURUSSI DESOM,
               OTTAPALAM TALUK 679 504.
    3          SALEEM,
               S/O. MAMMUNNI, KARUVAKKATTUTHODI VEEDU,
               CHALAVARA AMSOM, DESOM AND POST, OTTAPALAM
               TALUK 679 505.
    4          UMMAR,
               S/O. HYDRU,
               KUNDILAPEEDIKAYKKAL VEEDU, CHERPULASSERY POST,
               OTTAPALAM 679 503.
               BY ADV SRI.RAJIT
        THIS    OP   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C) No.310 of 2019

                                     -2-



                                 JUDGMENT

Dated this the 07th day of September, 2021

The challenge in this original petition is

against Ext.P11 order of the trial court,

rejecting the application for remitting the

Advocate Commissioner's report filed by the

petitioner. The petitioner is the plaintiff in

the suit, which is filed seeking a decree of

permanent prohibitory injunction. At the

instance of the petitioner, an Advocate

Commissioner was appointed and a report filed.

Being dissatisfied with the report, petitioner

filed I.A.No.479 of 2018 praying to remit the

report to the same Commissioner for identifying

the property based on the old survey report. The

trial court rejected the application on the

ground that the suit is for injunction

simplicitor and the Commissioner had plotted the O.P.(C) No.310 of 2019

plaint schedule property according to the survey

documents and hence, identification of the

property based on the old survey is not material.

The grievance of the petitioner about the

commission having not considered the work memo,

was found to be false. The trial court held that

the commissioner had considered each and every

point directed to be noted as per the work memo.

2. Learned Counsel for the petitioner

submits that unless the property is identified

based on the petitioner's prior title deeds and

old survey numbers, the dispute involved in the

suit cannot be resolved. It is submitted that

the defendant in the suit was also dissatisfied

with the manner in which the commissioner had

identified the property and had raised serious

objection against the report.

3. I heard the learned Counsel appearing

for the respondent also.

O.P.(C) No.310 of 2019

4. Having heard the learned Counsel and

having perused Ext.P6 report, Exts.P7 and P8

objections, Ext.P9 application and Ext.P11 order,

I find that the prayer for remitting the

commission report to be well founded. The prior

title deeds of the parties being available, the

Commissioner should have made at an attempt to

identify the properties based on these documents.

In the result, the original petition is

allowed. Ext.P11 order is set aside and Ext.P6

report shall be remitted to the same Advocate

Commissioner for identifying the plaint schedule

property on the basis of the title deeds and

filing a report and plan after ascertaining the

matters pointed out by the parties in their work

memos.

Sd/-

V.G.ARUN JUDGE Scl/07.09.2021 O.P.(C) No.310 of 2019

APPENDIX OF OP(C) 310/2019

PETITIONER EXHIBITS EXHIBIT P1 PHOTO COPY OF THE AMENDED PLAINT IN OS NO. 354/2013 OF MUNSIFF COURT, OTTAPALAM.

EXHIBIT P2 PHOTO COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN OS NO. 354/201 OF MUNSIFF COURT, OTTAPALAM. EXHIBIT P3 PHOTO COPY OF THE ADDL. WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN OS NO. 354/2013 OF MUNSIFF COURT, OTTAPALAM.

EXHIBIT P4 PHOTO COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 2 AND 4 IN OS NO. 354/2013 OF MUNSIFF COURT, OTTAPALAM. EXHIBIT P5 PHOTO COPY OF THE WORK MEMO SUBMITTED ON BEHAF OF THE PLAINTIFF IN OS NO. 354/2013 OF MUNSIFF COURT, OTTAPALAM. EXHIBIT P6 PHOTO COPY OF THE REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS NO. 354/2013 OF MUNSIFF COURT, OTTAPALAM DATED 18.1.2018.

EXHIBIT P7 PHOTO COPY OF THE OBJECTION FILED BY THE PLAINTIFF TO THE COMMISSIONERS REPORT FILED IN OS NO. 354/2013 OF MUNSIFF COURT, OTTAPALAM.

EXHIBIT P8 PHOTO COPY OF THE OBJECTION FILED BY THE DEFENDANTS 1, 2 AND 4 TO THE COMMISSIONERS REPORT IN OS NO. 354/2013 OF MUNSIFF COURT, OTTAPALAM. EXHIBIT P9 AFFIDAVIT FILED IN SUPPORT OF IA 479/2018 IN OS 354/2013 OF MUNSIFF COURT, OTTAPALAM.

EXHIBIT P10 PHOTO COPY OF THE OBJECTION FILED BY THE DEFENDANTS 1, 2 AND 4 IN IA 479/2018 IN OS NO. 354/2013 OF MUNSIFF COURT, OTTAPALAM.

EXHIBIT P11 PHOTOCOPY OF THE ORDER PASSED IN IA 479/2018 IN OS 354/2013 OF MUNSIFF COURT, OTTAPALAN DATED 4.1.2019. EXHIBIT P12 PHOTO COPY OF DOCUMENT NO. 204/1965 OF SRO CHERPULASERY.

O.P.(C) No.310 of 2019

EXHIBIT P13 PHOTOCOPY OF THE PURCHASE CERTIFICATION NO. 1509/1976 OF LAND TRIBUNAL, SREEKRISHNAPURAM. EXHIBIT P14 CERTIFIED COPY OF DOCUMENT NO.

4743/2005 OF SRO CHERPULASSERY. EXHIBIT P15 CERTIFIED COPY OF DOCUMENT NO. 18/1977 OF SRO CHARPULASSERY.