Jolly Paul vs Sherry Paul
2022 Latest Caselaw 3565 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
         THURSDAY, THE 24TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944
                          OP(C) NO. 449 OF 2022
AGAINST THE ORDER/JUDGMENT IN IA 2/2021 IN OS 134/2017 OF MUNSIFF COURT,
                               MUVATTUPUZHA
PETITIONER/PETITIONER/PLAINTIFF:

            JOLLY PAUL
            AGED 55 YEARS
            S/O.PAUL, PUTHUMANA HOUSE, ALAPURAM KARA,
            ELANJI P.O., ELANJI VILLAGE, MUVATTUPUZHA
            TALUK, REP. BY HIS POWER OF ATTORNEY HOLDER JOSE SEBASTIAN,
            S/O.DEVASIA, AGED 60 YEARS,
            MANAPARAMBIL @ MATTATHIL HOUSE,
            NECHIPUZHA KARA, LALAM VILLAGE, MEENACHIL TALUK,
            KOTTAYAM DISTRICT, PIN-686 665.
            BY ADVS.
            ALEXANDER GEORGE
            HEMANTHINI P.


RESPONDENTS/RESPONDENTS/DEFENDANTS:

     1      SHERRY PAUL
            S/O.PAUL, PUTHUMANA HOUSE, ALAPURAM KARA,
            ELANJI PO., ELANJI VILLAGE,
            MUVATTUPUZHA TALUK, PIN-686 665.
     2      MINI SHERLY
            AGED 50 YEARS
            W/O.SHERRY PAUL, PUTHUMANA HOUSE,
            ALAPURAM KARA, ELANJI PO., ELANJI VILLAGE,
            MUVATTUPUZHA TALUK, PIN-686 665.
            BY ADVS.
            C.DILIP
            ANUSHKA VIJAYAKUMAR(K/835/2019)


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 449 OF 2022
                                 2


                             JUDGMENT

Dated this the 24th day of March, 2022

This Original Petition has been filed under Article 227 of

the Constitution of India.

2. In this case, the plaintiff impugns order dated

19.01.2021 in I.A.No.2/2021 in O.S.No.134/2017, whereby

the learned Munsiff dismissed the application filed by the

petitioner to appoint a Commission with the assistance of a

Surveyor to measure out the properties as sought for in the

petition.

3. Heard both sides in detail.

4. The learned counsel for the petitioner submitted

that in the written statement filed by the defendant, identity

of the property was disputed and the said contention was

observed by the appellate Judge when dealing with a Civil

Miscellaneous Appeal. Therefore, identification of the

property, exactly, by measuring the same and by preparing

a survey plan, is absolutely necessary to canvas an effective

decree of prohibitory injunction. Therefore, he pressed for OP(C) NO. 449 OF 2022

setting aside the order.

5. Dispelling this argument, it is submitted by the

learned counsel for the petitioner that, in the original petition

itself, the petitioner asserted that the plaint schedule

property is lying within well-defined boundaries and the

available commission report also is suggestive of the said

fact. In view of the matter, there is no necessity to appoint a

Commission with the assistance of a Surveyor, in a case of

this nature, where the relief is only simple prohibitory

injunction.

6. The learned counsel also pointed out the prayers

in the commission report merely giving emphasis to a plan

prepared by the Village Officer. He submitted that there is

dispute regarding mutation and allotment of property on the

basis of re-survey and some orders also passed by the

Tahsildar in this regard.

7. In this matter, I have perused the commission

report available at par with the contentions urged by both

sides. In page No.41 of this paper book, the Commissioner,

who inspected the property as part of local inspection, OP(C) NO. 449 OF 2022

categorically stated that there was no physical boundary in

existence on the southern side of the plaint schedule

property with that of the defendant's property. Thus, prima

facie, it appears that on the southern side, no boundary is

available and therefore, it is difficult to pass an effective

decree though the relief is only simple prohibitory injunction.

8. In view of the matter, I am of the view that the

commission application filed by the petitioner to measure

and identify the property based on title is liable to be

allowed. However, it appears that the prayers therein is

mainly depending on the plan prepared by the Village

Officer, Elanji dated 18.12.1991. To that extent, the prayer

cannot be allowed also.

Therefore, the order impugned is set aside. The court

below is directed to name the Commission and Surveyor and

fix the batta, within a period of 30 days, from the date of

receipt of a copy of this judgment.

It is specifically ordered that the Commissioner shall

measure out the property as sought for in relief No.(B)

without any reference to plan dated 18.12.1991, prepared by OP(C) NO. 449 OF 2022

the Village Officer. The Commissioner and Surveyor shall

measure out the property based on the title deed, old survey

plan as well as the re-survey plan and produce the said plans

with report before the court. Needless to say that ultimate

decision as to the acceptability of the plans shall be taken by

the trial court.

Original Petition stands disposed of.

The Registry shall forward a copy of this judgment to

the court below concerned, within seven days, for

information and compliance.

Sd/-

A. BADHARUDEEN JUDGE

nkr OP(C) NO. 449 OF 2022

APPENDIX OF OP(C) 449/2022

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER DATED 5/3/2017. Exhibit P2 THE TRUE COPY OF THE SALE DEED NO.478/2001 EXECUTED IN FAVOUR OF THE PETITIONER DATED 30/3/2001.

Exhibit P3 THE TRUE COPY OF THE SETTLEMENT DEED NO.2770/1991 IN FAVOUR OF SHINE PAUL DATED 13/12/1991.

Exhibit P4 THE TRUE COPY OF THE GAHAN EXECUTED BY MR.SHISNE IN FAVOUR OF THE HOUSING SOCIETY ON 26/12/1991.

Exhibit P5 THE TRUE COPY OF THE SKETCH AND MAHAZER PREPARED BY THE ELANJI VILLAGE OFFICER DATED 18/12/1991.

Exhibit P6 THE TRUE COPY OF THE RELEASE DEED NO.938/1997 IN FAVOUR OF SHINE PAUL DATED 22/4/1997.

Exhibit P7 THE TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE ELANJI GRAMA PANCHAYATH DATED 17/3/2017.

Exhibit P8 THE TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE ELANJI VILLAGE OFFICE DATED 15/1/2016.

Exhibit P9 THE TRUE COPY OF THE PROPERTY TAX RECEIPT ISSUED BY THE VILLAGE OFFICER DATED 12/4/2019.

Exhibit P10 TRUE COPY OF OS NO.134/2017 FILED BY THE PETITIONER BEFORE THE HONOURABLE MUNSIFF COURT, MUVATTUPUZHA.

Exhibit P11 TRUE COPY OF THE REPORT FILED BY THE COMMISSIONER Exhibit P12 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS IN OS 134/2017. Exhibit P13 TRUE COPY OF THE ORDER PASSED IN IA 907/2017 IN OS 134/2017 BY THE HONOURABLE MUNSIFF COURT DATED 18/7/2019.

Exhibit P14 TRUE COPY OF THE ORDER PASSED IN IA CMA 22/2019 BY THE SUB COURT ON 24/2/2021. Exhibit P15 TRUE COPY OF THE ORDER PASSED IN IA 2/2021 FOR SURVEY COMMISSION IN OS 134/2017 FILED BY THE PETITIONER BEFORE THE MUNISFF OP(C) NO. 449 OF 2022

COURT, MUVATTUPUZHA.

Exhibit P16 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN IA 2/2021 IN OS 134/2017.

Exhibit P17 TRUE COPY OF THE ORDER PASSED IN IA 2/2021 DATED 19/1/2022 FOR SURVEY COMMISSION IN OS 134/2017.

Exhibit P18 TRUE COPY OF THE ORDER PASSED IN IA 4/2021 DATED 19/1/2022 FOR AMEND THE SUIT Exhibit P19 TRUE COPY OF THE ORDER PASSED IN OP(C) NO.232/2022 DATED 9/2/2022 BY THIS HONOURBLE COURT.