Kerala High Court
K. J. Joseph @ Jerome vs Jackson V. Vettikad on 21 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
OP(C) NO. 2776 OF 2023
IN OS NO.544/2019 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA
PETITIONER(S)/PETITIONER/DEFENDANT:
K. J. JOSEPH @ JEROME
AGED 62 YEARS, S/O KARUVALLIL ANNAMMA,
RESIDING AT KARUVALLIL VEEDU, MUTTAR P.O., KUTTANAD,
ALAPPUZHA DISTRICT, PIN - 689574.
BY ADVS.
K.SHAJ
BEENA N.KARTHA
C.IJLAL
POORNIMA RAJAN
ARUN CHAND
BHARAT VIJAY P.
MAJID MUHAMMED K.
MINU VITTORRIA PAULSON
GOPIKA GOPAL
ARCHANA SURESH
RESPONDENT(S)/COUNTER PETITIONERS/PLAINTIFFS:
1 JACKSON V. VETTIKAD
S/O VARGHESE, VETTIKAD VEEDU, MUTTAR P.O.,
MUTTAR VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT,
PIN - 689574.
2 ANNIE JACKSON
W/O JACKSON V. VETTIKAD, VETTIKAD VEEDU, MUTTAR P.O.,
MUTTAR VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT,
PIN - 689574.
BY ADVS.
GEORGE KURUVILLA(ALAPPUZHA)
JOHN NUMPELI (JUNIOR)(K/1150/1994)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C). No.2776 of 2023
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J U D G M E N T
Dated this the 21st day of December, 2023
Petitioner is the defendant in O.S. No.544/2019,
pending before the Additional Munsiff's Court,
Alappuzha. He is aggrieved by Ext.P7 order, which
refused an interim application for issuance of a
survey commission.
2. Heard the learned counsel for the petitioner
and the respondents.
3. Though it was strenuously contended by the
learned counsel for the petitioner that the
petitioner/defendant has a definite case - as
could be seen from paragraph Nos.2 and 3 of the
written statement - that the plaintiffs have
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trespassed into the Panchayat road at the northern
side and had erected barbed wire fencing, this
Court notice that the suit is one for injunction
simplicitor, restraining the petitioner/defendant
from trespassing into the plaint schedule
property. It is also important to note that the
pathway at the northern side of the plaintiffs'
property has not been scheduled. From a perusal
of the sketch appended to the Commission report,
produced along with the counter filed by the
respondents/plaintiffs, it could be seen that the
pathway is lying in the east-west direction on the
northern side of plaint schedule property; and
that the defendant's property is situated on
further north of the pathway. If the defendant has
a case that the plaintiff had put up barbed wire
fencing, either by encroaching into the pathway or
by encroaching into the defendants property, it is
for the defendant to seek appropriate relief for
redressal of such grievance. At the risk of
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repetition, it may be reiterated that the scope of
injunction sought for is only from trespass into
the plaint schedule property. The defendants'
property and the plaintiff's property are
separated by a pathway, wherefore, the defendants
cannot be heard to be aggrieved that the grant of
the injunction would prejudice them in any manner.
The defendants have no case that any portion of
the defendants' property is included in the
plaintiff's property. His grievance is espoused
in such a manner, that on account of the alleged
trespass into the pathway, over which the
defendants also have right, the defendants' rights
are detrimentally affected. This Court is of the
definite opinion that the stand taken by the
learned Munsiff in Ext.P7, that measurement of the
property of the plaintiff is not required for a
proper adjudication of the suit, cannot be faulted
on any premise. As a matter of fact, the impugned
order has correctly imbibed the spirit of Ext.P6
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judgment of this Court, which frowned upon an
earlier survey commission application being
allowed without reference to the objection that
the same is not required.
In the circumstances, this Original Petition fails
and the same will stand dismissed.
Sd/-
C. JAYACHANDRAN
JUDGE
Skk//23.12.2023
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APPENDIX OF OP(C) NO.2776/2023
PETITIONER'S EXHIBITS:-
EXHIBIT P1 THE TRUE COPY OF THE PLAINT DATED
01/07/2019 IN O.S. NO. 544/2019 ON THE
FILE OF THE ADDITIONAL MUNSIFF'S COURT,
ALAPPUZHA.
EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT
DATED 14/01/2020 FILED BY THE
PETITIONER IN O.S. NO. 544/2019 ON THE
FILE OF THE ADDITIONAL MUNSIFF'S COURT,
ALAPPUZHA.
EXHIBIT P3 6. THE TRUE COPY OF I.A. NO. 3/2022
DATED 03/03/2022 IN O.S. NO. 544/2019
ON THE FILE OF THE ADDITIONAL MUNSIFF'S
COURT, ALAPPUZHA.
EXHIBIT P4 THE TRUE COPY OF THE OBJECTION IN I.A.
NO. 3/2022 IN O.S. NO. 544/2019 FILED
BY THE RESPONDENTS BEFORE THE
ADDITIONAL MUNSIFF'S COURT, ALAPPUZHA
EXHIBIT P5 THE TRUE COPY OF ORDER DATED 28/03/2022
IN I.A. NO. 3/2022 IN O.S. NO. 544/2019
OF THE ADDITIONAL MUNSIFF'S COURT,
ALAPPUZHA.
EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT DATED
05/10/2023 IN O.P.(C) NO. 1117/2022 OF
THIS HON'BLE COURT .
EXHIBIT P7 THE TRUE COPY OF THE ORDER DATED
10/11/2023 IN I.A. NO. 03/2022 IN O.S.
NO.544/2019 BY THE ADDITIONAL MUNSIFF'S
COURT, ALAPPUZHA.
RESPONDENTS' EXHIBITS:-
EXHIBIT R2(A) TRUE COPY OF THE PARTITION DEED NO.
480/1997 DATE 21/2/1997
EXHIBIT R2(B) TRUE COPY OF THE SETTLEMENT DEED NO.
481/1997 DATE 21/2/1997
EXHIBIT R2(C) TRUE COPY OF THE LAND TAX RECEIPT DT
17.6.19
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EXHIBIT R4(D) TRUE COPY OF THE CERTIFICATE DATED
11.11.2019 ISSUED BY THE VILLAGE
OFFICER, MUTTAR
EXHIBIT R2(E) TRUE COPY OF THE CHARGE SHEET IN CRIME
NO. 685/2019 OF RAMANKARY POLICE
STATION
EXHIBIT R2(F) TRUE COPY OF THE COMMISSION REPORT
EXHIBIT R2(G) TRUE COPY OF THE 2 ND COMMISSION REPORT
EXHIBIT R4(H) TRUE COPY OF THE ISSUES FRAMED IN OS
