Kerala High Court
Gopalakrishnan Embranthiri vs Thripurayar Mahadevakshetra ... on 23 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
OP(C) NO. 1168 OF 2017
AGAINST THE ORDER/JUDGMENT IN OS 14/2013 OF MUNSIFF COURT,ALUVA
PETITIONERS:
1 GOPALAKRISHNAN EMBRANTHIRI
AGED 59 YEARS,
S/O.LATE VISWANATHAN EMBRANTHIRI,
KIDANGASSERRY MADHOM, PURAYAR,
CHOWWARA, ALUVA TALUK.
2 RADHA GOPALAKRISHNAN ,
AGED 59 YEARS,
W/O LATE GOPALAKRISHNAN EMBRANTHIRI,
KIDANGASSERRY MADHOM, PURAYAR,
CHOWWARA 683571, ALUVA TALUK, ERNAKULAM DISTRICT
3 VISWANATH K G,
AGED 33 YEARS,
S/O LATE GOPALAKRISHNAN EMBRANTHIRI,
KIDANGASSERRY MADHOM, PURAYAR,
CHOWWARA 683571, ALUVA TALUK,
ERNAKULAM DISTRICT
4 VISHNUNATH K G,
AGED 29 YEARS,
S/O LATE GOPALAKRISHNAN EMBRANTHIRI,
KIDANGASSERRY MADHOM, PURAYAR,
CHOWWARA 683571, ALUVA TALUK,
ERNAKULAM DISTRICT
(ADDITIONAL PETITIONERS 2 TO 4 ARE IMPLEADED AS THE LRS
OF DECEASED SOLE PETITIONER VIDE ORDER DATED 21.06.2022
IN I.A.NO:1/2022)
BY ADVS.
SRI.V.RAJENDRAN (PERUMBAVOOR)
SRI.GEORGE VARGHESE KIZHAKKAMBALAM
RESPONDENTS:
1 THRIPURAYAR MAHADEVAKSHETRA SAMRAKSHANA SAMITHI
REG. NO.33/IV/2012, PURAYAR, CHOWWARA-683571,
REPRESENTED BY ITS SECRETARY.
2 SRI.THRIPURAYAR MAHADEVAN
REPRESENTED BY PARAMESWARAN NAMBOOTHIRIPAD @
KUNJIKUTTAN, VELAMANA,
OORANMA THURUTH, PURAYAR, CHOWWARA-683571.
O.P(C) No.1168 of 2017
2
3 M.K.SIVARAMAN,
AGED 56 YEARS,
S/O.KRISHNAN NAIR,
VARIKKATTU HOUSE,
CHOWWARA P.O.-683571,
SREEMOOLANAGARAM.
4 SAJEESH SATYAN,
AGED 35 YEARS,
S/O.SATYAN,
UNNEERAKATHOOTT HOUSE,
CHOWWARA P.O.-683571,
SREEMOOLANAGARAM.
BY ADV SRI.B.JAYASANKAR
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(C) No.1168 of 2017
3
JUDGMENT
Dated this the 23rd day of June, 2022
The original petition is filed to set aside the
order in I.A No.378/2017 in O.S No.14/2013 (Ext.P5)
of the Court of the Munsiff, Aluva. During the
pendency of this original petition, the original
petitioner died and his legal representatives have
been impleaded as additional petitioners 2 to 4.
Nevertheless, the parties are referred to as
petitioner and respondents, for the sake of
convenience.
2. The original petitioner's case, in brief, in
the memorandum of original petition is that, he is
the plaintiff in the above suit, which is filed against
the respondents before the above court, seeking a
decree for the recovery of the property. The
property is situated on the southern side of the
plaint schedule property belonging to the 2nd
respondent diety. The administration of the 2 nd
O.P(C) No.1168 of 2017
respondent is carried out by the 1 st respondent
registered society. The respondents 3 and 4 and
their associates have attempted to construct a
compound wall, trespassing into the plaint schedule
property. Even though the attempt was obstructed
by the petitioner, the respondents have threatened
the petitioner. The petitioner now apprehends that
respondents have trespassed into his property.
Thus, the suit. The respondents have entered
appearance in the suit and filed their written
statement. The petitioner then applied for the
appointment of an Advocate Commissioner, which
was allowed and Exts.P1 commission report and P2
survey plan have been placed on record. While so,
certain mediators intervened and the possibilities of
a settlement was explored. It was decided that a
joint inspection be conducted. Then, the parties had
certain doubts regarding Ext.P2 plan. Accordingly,
the surveyor was requested to be present at the
property, but the boundaries could not be measured
O.P(C) No.1168 of 2017
and identified as per Ext.P2. Therefore, the
petitioner has filed Ext.P3 application, to remit
commission report and survey plan. The same was
not objected by the respondents. The petitioner also
filed Ext.P4 work memo. Nonetheless, the court
below dismissed the application by Ext.P5 order on
the ground that no steps were taken to examine the
commissioner and surveyor. Ext.P5 is erroneous
and wrong. Hence, the original petition.
3. Heard Sri.Rajesh.N, the learned counsel
appearing for the petitioners and Sri.B.Jayasankar,
the learned counsel appearing for the respondents.
4. The point that arises for consideration in
this original petition is whether there is any error in
Ext.P5 order passed by the court below.
5. The fact that the parties could not identify
the property based on Ext.P2 plan is not disputed by
both sides. Therefore, necessarily, there is some
error in Exts.P1 and P2. In the best interest of both
sides and to do complete justice, it is expedient that
O.P(C) No.1168 of 2017
new Advocate Commissioner is appointed and the
inspection is carried out.
6. The learned counsel appearing for the
respondents submits that respondents may also be
given an opportunity to file their work memo before
the Advocate Commissioner, so that all matters also
can be elucidated. It is trite, that identity of the
property is imperative in suits for injunctions and
consequential reliefs. Thus, in exercise of the
supervisory powers of this Court under Article 227
of the Constitution of India, the original petition is
allowed as follows:-
(i) Ext.P5 order is set aside.
(ii) Exts.P1 commission report and P2 survey
plan are also set aside
(iii) Ext.P3 application is allowed by directing
the court below to appoint a new
Advocate Commissioner, who shall
elucidate the matters as sought for in
Ext.P3 application and the work memo
O.P(C) No.1168 of 2017
filed by both sides, with the assistance of
the present Taluk Surveyor.
(iv) The petitioners and the respondents would
be at liberty to file their respective work
memos before the Advocate Commissioner.
(v) The remuneration of the Advocate
Commissioner shall be fixed by the court
below.
(vi) On a consideration that suit is of the year
2013, the court below shall make every
endeavour to decide the suit in
accordance with law, as expeditiously as
possible.
The original petition is ordered accordingly.
Sd/-
C.S.DIAS
Judge
NR/23/06/2022
O.P(C) No.1168 of 2017
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1- TRUE COPY OF COMMISSION REPORT FILED BY ADVOCATE
COMMISSIONER IN I.A.395/13 IN O.S.14/13 ON
22/07/2016.
EXHIBIT P2- TRUE COPY OF SURVEY PLAN PRODUCED ALONG WITH EXHIBIT
P1.
EXHIBIT P3- TRUE COPY OF PETITION FILED BY PETITIONER AS
I.A.378/17 IN O.S.14/13 DATED 27/02/2017.
EXHIBIT P4- TRUE COPY OF WORK MEMO FILED BY RESPONDENTS 3 & 4 IN
I.A.378/17 IN O.S.14/13 ON 06/03/2017.
EXHIBIT P5- TRUE COPY OF ORDER IN I.A.378/17 IN O.S.14/13 DATED
16/03/2017.
//TRUE COPY// PA TO JUDGE
