Saidalavi vs Edathil Thodikayil Perachakutty ...
2023 Latest Caselaw 308 Ker

OP(C) NO. 1671 OF 2014               1



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
    WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                         OP(C) NO. 1671 OF 2014
        OS 320/2007 OF PRINCIPAL MUNSIFF COURT ,KOZHIKODE-II
PETITIONER/S:

    1      SAIDALAVI
           S/O.AMMADKUTTY, RESIDING AT KANNANPARAMBIL HOUSE,
           POOLAKOD AMSOM DESOM, KOZHIKODE TALUK.
    2      SREENARAYANAN
           S/O.CHANDU NAIR, RESIDING AT POOLAKODE AMSOM DESOM,
           KOZHIKODE TALUK.
    3      PRASANNAKUMAR
           S/O.NARAYANAN NAIR, RESIDING AT POOLAKODE AMSOM DESOM,
           KOZHIKODE TALUK.
    4      UNNI
           S/O.GOPALAN NAIR, RESIDING AT ANAYEDATH HOUSE,
           POOLAKODE AMSOM DESOM, KOZHIKODE TALUK.
           BY ADVS.
           SRI.V.V.SURENDRAN
           SRI.P.A.HARISH


RESPONDENT/S:

    1      EDATHIL THODIKAYIL PERACHAKUTTY (DIED)
           S/O.RAMUTTY, CHULOOR AMSOM DESOM, KOZHIKODE TALUK, P.O
           CHATHAMANGALAM, KOZHIKODE 673 601.
    2      AYANIKKATT PORUR BALAKRISHNAN
           S/O.IMBICHIUNNI, OLAVANNA AMSOM, ERINGALUR DESOM,
           KOZHIKODE TALUK, KOZHIKODE 673 025.
    3      E.P. JANAKI
           AGED 74 YEARS, W/O PERACHAKUTTY, RESIDING AT
           EDATHILTHODIKAYIL HOUSE, POST CHULOOR, NIT CAMPUS,
           CHULOOR AMSOM DESOM OF KOZHIKODE TALUK, KOZHIKODE -
           673601
    4      E.T. BABU
           AGED 56 YEARS S/O PERACHAKUTTY, RESIDING AT
           EDATHILTHODIKAYIL HOUSE, POST CHULOOR, NIT CAMPUS,
           CHULOOR AMSOM DESOM OF KOZHIKODE TALUK,KOZHIKODE-673601
 OP(C) NO. 1671 OF 2014            2



    5     SATHYAN
          AGED 51 YEARS, S/O PERACHAKUTTY, RESIDING AT
          EDATHILTHODIKAYIL HOUSE, POST CHULOOR, NIT CAMPUS,
          CHULOOR AMSOM DESOM OF KOZHIKODE TALUK, KOZHIKODE -
          673601
    6     SUNILKUMAR
          AGED 49 YEARS, S/O PERACHAKUTTY, RESIDING AT
          EDATHILTHODIKAYIL HOUSE, POST CHULOOR, NIT CAMPUS,
          CHULOOR AMSOM DESOM OF KOZHIKODE TALUK, KOZHIKODE -
          673601
    7     SHOBHANA
          AGED 53 YEARS, D/O PERACHAKUTTY, RESIDING AT
          EDATHILTHODIKAYIL HOUSE, POST CHULOOR, NIT CAMPUS,
          CHULOOR AMSOM DESOM OF KOZHIKODE TALUK, KOZHIKODE -
          673601
          (ADDITIONAL R3 TO R7 ARE IMPLEADED AS THE LEGAL
          REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS PER ORDER
          DATED 15-09-2015 IN IA NO.13020/2015.
          BY ADVS.
          SRI.P.P.BALAN
          SMT.M.MANJU
          SRI.R.SUDHISH FOR R3 TO R7


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 1671 OF 2014               3




                           JUDGMENT

Aggrieved by Ext.P7 order passed in I.A.No.1373/2009

and Ext.P12 order passed in I.A.No.3642/2013 in

O.S.No.320/2007 by the Court of the Principal Munsiff-II,

Kozhikode, the defendants 2 to 5 have filed the original

petition. The original 1st respondent was the plaintiff and

the 2nd respondent was the 1st defendant in the suit.

Pending the original petition the 1st respondent died, and

his legal representatives have been impleaded as

supplemental respondents 3 to 7.

2. The relevant facts, leading to Ext.P12 order, are:

the original 1st respondent had filed the suit against the

petitioners and the 2nd respondent for decrees of

mandatory and perpetual prohibitory injunctions. The

petitioners resisted the suit by filing Ext.P2 written

statement. An Advocate Commissioner and a Surveyor

were appointed, and they filed Ext.P4 report and Ext.P5

plan. Subsequently, the plaint was amended to incorporate

a survey number. The petitioners thenfiled an additional

written statement with a counter claim for a decree for

fixation of boundary. On finding Exts.P4 and P5 to be

erroneous, the petitioners filed I.A.No. 1373/2009 (Ext.P6)

to remit Exts.P4 and P5. The court below, by the

impugned Ext.P7 order, rejected Ext.P6 application. After

the amendment was carried out and the counter claim was

filed, the original 1st respondent filed I.A.No.3641/2013 for

a supplemental commission report and plan. Accordingly,

Ext.P8 report and P9 plan were placed on board. Then,

the original 1st respondent filed I.A. No.3643/2013

(Ext.P10), to set aside Exts.P8 and P9. The said

application was opposed by the petitioners through

Ext.P11 written objection. The court below, by the

impugned Ext.P12 order, allowed Ext.P10 application and

set aside Exts.P8 and P9. Exts.P7 and P12 are patently

wrong and unsustainable in law. Hence, the original

petition.

3. Heard, Sri.P.A.Harish, the learned counsel

appearing for the petitioners and Sri.R. Sudhish, the

learned counsel appearing for the respondents 3 to 7.

4. The question is, is there any illegality in Exts.P7

and P12 orders.

5. At the instance of the original 1 st respondent, an

Advocate Commissioner and a Surveyor were appointed,

who filed Exts.P4 and P5 report and plan. Even though the

petitioners filed Ext.P6 application to set aside Exts.P4 and

P5, the same was rejected by the court below by Ext.P7

order. The petitioners did not challenge Ext.P7 order.

6. Consequent to the amendment of the plaint and

the filing of the counter claim, at the instance of the

original 1st respondent, Exts.P8 supplemental report and

P9 plan were brought on record.

7. On finding Exts.P8 and P9 not to the taste of the

original 1st respondent, he filed Ext.P10 application. Even

though the said application was opposed by the petitioners

through Ext.P11 counter statement, the court below, by

the impugned Ext.P12 order, set aside the report holding

as follows:-

"5. The point:- The suit is for mandatory and prohibitory injunctions. According to the petitioner/plaintiff. The report and plan: tiled by the Commissioner is against facts of the case and is not at all. helpful for a proper adjudication of the suit. Allegation of the petitioner/plaintiff is that Commissioner in the report stated that counterclaim schedule property is not identifiable. Yet the surveyor had clearly shown 1.6 cents in the plan. Another allegation is that the measurements of plaint schedule property given in the plan a long with the report dated 20/9/2008, was not taken into consideration and new measurements were shown in the plan submitted on 26/8/2013 only to favour the respondents. So also surveyor included 1.2 meter wide lane in the plan on the Eastern portion of the plaint schedule property without any basis.

6. Surveyor while examined as CW1 deposed that he had verified the asset register of the panchayat. The disputed Lane was shown as from Dhanya Talkies up to Thatturpoil and survey number of the lane was not shown in the said register. CW2 Commissioner deposed that he had not verified any document pertaining to the lane before measuring the property. From IA 762/13 filed by respondents 2 to 5. It can be seen that the prayer in the petition was to ascertain the market value of the counterclaim schedule property and also to fix the boundaries of counterclaim schedule property. Going through Exts. C4 report it is seen that the market value of the property is not reported by the Commissioner. The same advocate Commissioner and another surveyor was initially appointed to identify the plaint schedule property. Exts.C3 and C2 are the report and plan submitted on 22/9/2008. Respondents had challenged the said report and plan, and after careful scrutiny the court dismissed the IA 1373/2009, the petition tiled by the respondents to set aside Exts. C3 and C2. In Exts, C3 and C2, surveyor had located the property covered by sale

deed No. 3387/2004 without any direction to not the same. This was also challenged by respondents in IA 1373/2009; but court considered the objection and did not find any fault with the plan. Order in IA 1578/2009 was not challenged by the respondents and hence Exts. C3 report and C2 plan had been accepted by court. Property covered by deed No. 3387/2004 (counterclaim schedule property) was identified and clearly shown in Ext.C2 plan. So Commissioner ought to have fixed the boundaries of counterclaim property on the basis of Ext C2 plan. It is pertinent to note that Commissioner had not ascertained and reported the market value of the counterclaim schedule property in Ext. C4 report. Commissioner had located the plaint schedule property In Ext. C4 report as 28cents and shown counterclaim property on the Eastern side of the encroached portion. If necessary, surveyor could have prepared separate plans showing the counterclaim schedule property with the lane on its Western side as per the counterclaim description and present lie, and another one with the plaint schedule property and counterclaim schedule property with the side measurements as identified in Ext. C3 plan. Since Exts, C1 and C4 report and plan are not prepared in accordance with the direction in IA 762/2013 and not in consonance with the Exts.C2 and C3 which are already accepted by court, I find that Exts. C1 and C4, plan and report are liable to be set aside. Hence Exts. C4 report and Exts.C1 plan are set aside. Advocate. Sreedevi is appointed as the Commissioner and Taluk Surveyor is appointed as Surveyor to assist the Commissioner."

8. A reading of Ext.P12 order would substantiate

that the court below has completely discarded Exts.P8 and

P9 for the reason that they are not in consonance and

uniformity with Exts.P4 and P5.

9. Merely because there is inconsistency between

the two reports and plans, the same is not a ground to

discard and set aside the said report and plan.

10. The court below, at the instance of the original 1 st

respondent/plaintiff, had deputed the Advocate

Commissioner and a Surveyor who filed Exts.P8 and P9

supplemental report and plan. Exts.P4 & P5 and Exts.P8 &

P9 reports and plans are materials which are already on

record. If there is any inconsistency between the reports

and plans, the proper course to be adopted was to remit

Exts.P8 and P9 to the same Advocate Commissioner and

Surveyor and get the discrepancies clarified or reconciled,

rather than setting them aside on the asking of a party.

Thus, I am of the definite view that the course adopted by

the court below is erroneous and unsustainable in law,

which warrants interference by this Court under Article

227 of the Constitution of India.

In the result, I allow the original petition as follows:-

(i) Ext.P12 order is set aside.

(ii) Ext.P10 application is allowed to the limited

extent, by remitting back Exts.P8 and P9 report and plan

to the Advocate Commissioner and Surveyor.

(iii) The petitioners and the respondents 3 to 7 will be

at liberty to file their respective work memos before the

Advocate Commissioner to elucidate the additional matters

and for matters that they require clarification in Exts.P4,

P5, P8 and P9.

(iv) As the suit is of the year 2007, the court below

shall make an endeavour to dispose of the suit, in

accordance with law, as expeditiously as possible.

The original petition is ordered accordingly.

Sd/-

C.S.DIAS, JUDGE okb/12.1.2023 //True copy// P.S. to Judge

APPENDIX OF OP(C) 1671/2014

PETITIONER EXHIBITS EXHIBIT P1. COPY OF THE PLAINT IN OS 320/07 ON THE FILE OF THE PRINCIPAL MUNSIFF 11, KOZHIKODE DATED 2.7.07.

EXHIBIT P2. COPY OF THE WRITTEN STATEMENT IN OS 320/07 OF THE PRINCIPAL MUNSIFF 11, KOZHIKODE DATED 22.8.07.

EXHIBIT P3. COPY OF THE ADDITIONAL WRITTEN STATEMENT AND THE COUNTER CLAIM DATED 2.11.10.

EXHIBIT P4. COPY OF THE REPORT PREPARED BY THE COMMISSIONER DATED 20.09.08.

EXHIBIT P5. COPY OF THE PLAN PREPARED BY THE SURVEYOR DATED 26.8.08.

EXHIBIT P6. COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 1373/09 DATED 18.3.09.

EXHIBIT P7. COPY OF THE ORDER OF THE LEARNED MUNSIFF IN IA 1373/09 DATED 19.5.10.

EXHIBIT P8. COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 26.8.13.

EXHIBIT P9. COPY OF THE PLAN OF THE ADVOCATE COMMISSIONER DATED 26.8.13.

EXHIBIT P10. COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 3642/13 DATED 6.9.13.

EXHIBIT P11. COPY OF THE DETAILED OBJECTION OF THE PETITIONER DATED 24.9.13.

EXHIBIT P12. COPY OF THE ORDER OF THE LEARNED MUNSIFF IN IA 3642/13 DATED 11.4.14.