D. Vinayakumar vs Smt. Kunjamma Raveendranath
2022 Latest Caselaw 10475 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                        THE HONOURABLE MR.JUSTICE C.S.DIAS

            FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944

                              OP(C) NO. 1902 OF 2022

AGAINST ORDER DATED 17.09.2022 IN I.A.NO.5 OF 2022 IN O.S.NO.582 OF 2019 IN THE

                   COURT OF THE ADDITIONAL MUNISFF, ALAPPUZHA

PETITIONER/PLAINTIFF:

             D. VINAYAKUMAR,
             AGED 51 YEARS,
             KARUTHERIL HOUSE,
             THALAVADY SOUTH P.O.
             THALAVADY VILLAGE, KUTTANADU TALUK,
             ALAPPUZHA, , PIN - 689572
             BY ADV M.NARENDRA KUMAR


RESPONDENT/CR.PETITIONER/DEFENDANT:

             SMT. KUNJAMMA RAVEENDRANATH,
             W/O PEETHAMBARAN,
             VIPIN LAND, KARAKKADU MURI, MULAKKUZHA VILLAGE,
             CHENGANNUR TALUK, PIN - 689505
             (FROM PUNNASSERIL HOUSE, ANAPRAMBAL
             SOUTH MURI, KUTTANADU TALUK.)


      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2022, THE COURT ON

THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C)NO.1902 of 2022

                                2



                             JUDGMENT

Dated this the 07th day of October, 2022

Aggrieved by Ext.P1 order passed in

I.A.No.5/2022 in O.S.No.582/2019 of the Court of the

Additional Munsiff, Alappuzha, the plaintiff in the suit

has filed the original petition. The respondent is the

defendant in the suit.

2. The facts in brief, relevant for the

determination of the original petition, are: the

petitioner has filed the suit against the respondent,

inter alia, for a decree of declaration of title and

recovery of possession. The defendant has raised a

counter claim, seeking a decree for recovery of

possession. Item No.3 property is the disputed

property. An Advocate Commissioner was appointed,

who has filed Ext.P3 report, with a plan prepared by a O.P.(C)NO.1902 of 2022

private surveyor. On receiving Ext.P5 survey plan from

the District Survey Superintendent, the petitioner

realised that the plan attached to Ext.P3 report is

erroneous. Hence, the petitioner filed Ext.P4

application, to remit the commission report. The

application was resisted by the respondent through

Ext.P6 written objection. The court below, by the

impugned Ext.P1 order, has dismissed Ext.P4. Ext.P1

is erroneous and unsustainable in law. Hence, the

original petition.

3. Heard; Sri.M.Narendra Kumar, the learned

counsel appearing for the petitioner.

4. The point is whether there is any error or

illegality in Ext.P1 order.

5. The grievance of the petitioner is that the

plan attached to Ext.P3 report is not in conformity with

Ext.P5 plan issued by the District Survey

Superintendent. The court below has in the impugned O.P.(C)NO.1902 of 2022

Ext.P1 order found that there is no material to

establish any irregularity to set aside the commission

report and plan. Furthermore, the court below has

observed that as the properties are measured and the

boundary has been fixed by the Advocate

Commissioner, no prejudice would be caused to the

petitioner, especially when the properties in the plaint

and counter claim are the same.

6. Even though I don't concur with the

observations made by the court below in Ext.P1 order,

which is premature, I am of the definite view that as

the petitioner has picked holes in the plan attached to

Ext.P3 on the basis of Ext.P5 plan, the matter can only

be decided after trial and after examining the authors

of the above reports and plans. It is raw to conclude

that the plan attached to the Ext.P3 report is not in

conformity with Ext.P5 plan. Therefore, I hold that it

will be upto the petitioner, at the time of trial, to O.P.(C)NO.1902 of 2022

summon and examine, if so advised, both the surveyors

and bring out the discrepancies and contradictions

between the two reports/plans. If the same is

established, then, necessarily, the court below will re-

consider whether the reports and plans have to be set

aside.

With the above observation, the original

petition is dismissed.

Sd/-

C.S.DIAS Judge NR/07/10/2022 O.P.(C)NO.1902 of 2022

APPENDIX

PETITIONER'S EXHIBITS Exhibit-P1 TRUE COPY OF THE ORDER DATED 17.09.2022 IN I.A.

5 OF 2022 IN O.S. NO. 582 OF 2019 IN THE COURT OF ADDITIONAL MUNSIFF, ALAPPUZHA. Exhibit-P2 TRUE COPY OF THE PLAINT O.S. NO. 582 OF 2019 FILED BY THE PETITIONER BEFORE THE ADDITIONAL MUNSIFF COURT, ALAPPUZHA.

Exhibit-P3 TRUE COPY OF THE REPORT AND PLAN DATED 06.10.2021 SUBMITTED BY THE ADVOCATE COMMISSIONER.

Exhibit-P4 TRUE COPY OF THE I.A. NO. 5 OF 2022 FILED BY THE PETITIONER DATED 16.08.2022 Exhibit-P5 THE SURVEY PLAN SUPERSEDED THE EXISTING PLAN Exhibit-P6 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO I.A.NO. 5 OF 2022 DATED 23.08.2022