C.Kharikumar vs Smitha Jayan
2022 Latest Caselaw 1136 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        THURSDAY, THE 27TH DAY OF JANUARY 2022/7TH MAGHA, 1943
                         OP(C) NO. 1938 OF 2021
  AGAINST THE ORDER/JUDGMENT IN OS NO.1443/2014 ON THE FILES OF
                PRINCIPAL MUNSIFF'S COURT, ERNAKULAM
PETITIONER/PLAINTIFF

            C.K. HARIKUMAR
            S/O. M.N. BHASKARA KURUP, AGED 53 YEARS
            RESIDING AT KRISHNAVILASAM P.O, ELAMAKKARA,
            KOCHI- 682026.

            BY ADVS.
            C.S.MANU
            T.B.SIVAPRASAD



RESPONDENTS/DEFENDANTS

    1       SMITHA JAYAN
            W/O. KARIVELITHARA JAYAN, M.B.T.C.R.R.A 130,
            DEVI NIVAS, KALLIYATH LANE, B.T.S. MAMANGALAM CROSS
            ROAD, EDAPPALLY POST, COCHIN, PIN - 682024

    2       P.S. PRASANTH KUMAR
            S/O. SURENDRAN, M.B.T.C.R.R.A 130, DEVI NIVAS,
            KALLIYATH LANE, B.T.S. MAMANGALAM CROSS ROAD, EDAPPALLY
            POST, COCHIN, PIN - 682024.

    3       SAJI
            S/O. GEORGE, MUDAVATHIL HOUSE, PALARIVATTOM KARA,
            EDAPPALLY SOUTH VILLAGE, PALARIVATTOM, COCHIN,
            PIN - 682025.

    4       VITTPPA KAMATH
            S/O RAMA KAMATH, HOUSE NO. 45/1871, LINK PARK,
            LANE NO. 3, POTTAKUZHY ROAD, KALOOR, COCHIN - 682017

    5       DEEPA V.KAMATH
            D/O. VITTAPA KAMATH, HOUSE NO.45/1871, LINK PARK, LANE
            NO.3, POTTAKUZHY ROAD, KALOOR, COCHIN, PIN - 682017.
 OP(C) NO. 1938 OF 2021

                               2

     6     JIJO XAVIER,
           AGED 51 YEARS
           S/O XAVIER, EACHARAANGAD HOUSE, P.O, ELAMAKKARA,
           KOCHI - 24.

     7     SHEELA SANTHOSH
           KARUMALIPARAMBIL HOUSE, VETTAPPILLY LANE,
           KALLIATH ROAD, EDAPPALLY P.O, KOCHI - 24.

     8     SRIDEVI
           W/O PREMKUMAR SHENOY, M.B.T.C.R.R.A.,
           B.T.S. MAMANGALAM CROSS ROAD, EDAPPALLY,
           KOCHI 24.

     9     SECRETARY
           DREAM FLOWER SIGMA 2, THAMPURATTIPARAMBU ROAD,
           NEAR POOJA APARTMENT, PALARIVATTOM P.O, KOCHI 25

           BY ADVS.
           SIBI KARUN
           GOPIKA.N.NAIR




    THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
27.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(C) NO. 1938 OF 2021

                                        3

                                 JUDGMENT

The plaintiff in OS 1443/2014 on the file of the Munsiff Court,

Ernakulam has preferred the original petition under Article 227 of the

Constitution of India challenging the order in IA No.4/2020 dated 12.10.2021.

2. First and second respondents alone appeared. Other respondents not

served.

3. It is submitted by the learned counsel for the petitioner that the

plaint B schedule pathway in the plaint over which the plaintiff asserts easement

by grant was sought to be located by appointing a Survey Commission. Suit is

one for fixation of boundaries as well as prohibitory injunction. The learned

Munsiff dismissed the application on the ground that the servient tenement, in a

suit claiming right of easement shall be scheduled. The property of the dominant

heritage as well as the servient heritage shall be scheduled is the observation of

the learned Munsiff. It has been observed by the learned Munsiff further that, in

this matter, the servient heritage was not scheduled, though B schedule way

alone was scheduled without much description. This observation cannot be

faulted. In the context, the learned counsel for the petitioner/plaintiff submitted

that the petitioner is ready to incorporate the property of the defendant over

which the plaintiff asserts right of easement by grant, on the basis of the title

deed and an opportunity may be given to do the same. He also submitted that OP(C) NO. 1938 OF 2021

after incorporating the property of the defendant, the petitioner may be permitted

to file a commission application, with the help of the surveyor to identify the

properties including the B schedule pathway.

4. The learned counsel for the respondents 1 and 2 formally opposed

this submission. However, the right of the plaintiff to amend the plaint by

incorporating the property of the defendant cannot be taken away, if sufficient

grounds for the same is shown.

5. In the above view of the matter, I am inclined to dispose of this

original petition without disturbing the order impugned with liberty to the

plaintiff/petitioner to incorporate the property of the defendant also in the

schedule, by filing proper amendment application before the trial court.

It is made clear that, if the amendment if allowed, the plea of the plaintiff

to appoint a Survey Commission shall be considered positively.

This original petition is disposed of accordingly.

Sd/-

A. BADHARUDEEN, JUDGE

Cak OP(C) NO. 1938 OF 2021

APPENDIX OF OP(C) 1938/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE AMENDED PLAINT IN OS NO.

1443 OF 2014 ON THE FILES OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM FILED BY THE PETITIONER.

Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT 1 TO 3.

Exhibit P3 COUNTER CLAIM FILED BY RESPONDENT 1 & 2.

Exhibit P4 SALE DEED DATED 27.12.12 EXECUTED BY RESPONDENTS 4 AND 5 REGISTERED AS DOCUMENT NO. 45 OF 2013 OF SRO, EDAPPALLY.

Exhibit P5 IA NO.4 OF 2020 IN OS NO.1443 OF 2014 ON THE FILES OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.

Exhibit P6 OBJECTION FILED BY RESPONDENTS 1 & 2 IN IA NO.4/20.

Exhibit P7 ORDER DATED 12.10.2021 OF THE LEARNED PRINCIPAL MUNSIFF IN IA NO. 4/2020 IN OS 1443/14.

//TRUE COPY// PA TO JUDGE