Padmanabhan vs Jayan
2023 Latest Caselaw 2911 Ker

OP(C) NO. 633 OF 2023
                                1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
  MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
                      OP(C) NO. 633 OF 2023
AGAINST THE ORDER/JUDGMENT IN OS 1679/2011 OF PRINCIPAL SUB
                COURT / COMMERCIAL COURT, THRISSUR
  OS 1679/2011 OF PRINCIPAL SUB COURT / COMMERCIAL COURT,
                             THRISSUR
PETITIONER/S:

    1    PADMANABHAN
         AGED 64 YEARS
         S/O ATHANIKKAL APPUKUTTAN, CHIRANELLUR VILLAGE,
         THALAKOTTU KARA DESOM, THALAKOTTUKARA P O,
         KUNNAMKULAM TALUK, THRISSUR DISTRICT, PIN - 680501

    2    LEELA
         AGED 58 YEARS
         W/O PADMANABHAN, RESIDING IN THE ADDRESS
         ATHANIKKAL HOUSE, CHIRANELLUR VILLAGE,
         THALAKOTTUKARA DESOM, THALAKOTTUKARA P O,
         KUNNAMKULAM TALUK, THRISSUR DISTRICT, PIN - 680501

    3    BALAN
         AGED 75 YEARS
         S/O ATHANIKKAL APPUKUTTAN, CHIRANELLUR VILLAGE,
         THALAKOTTUKARA DESOM, THALAKOTTUKARA P O,
         KUNNAMKULAM TALUK, THRISSUR DISTRICT, PIN - 680501

    4    SAROJINI,
         AGED 81 YEARS
         D/O ATHANIKKAL APPUKUTTAN, CHIRANELLUR VILLAGE,
         THALAKOTTUKARA DESOM, THALAKOTTUKARA P O,
         KUNNAMKULAM TALUK, THRISSUR DISTRICT, PIN - 680501

         BY ADV G.SREEKUMAR (CHELUR)



RESPONDENT/S:
 OP(C) NO. 633 OF 2023
                                    2

            JAYAN
            AGED 52 YEARS
            S/O KUNJU, RESIDING IN THE ADDRESS KALATTUVALAPPIL
            HOUSE, KAINOOR VILLAGE, VALAKAVU DESOM, VALAKAVU P
            O, THRISSUR DISTRICT, PIN - 680014


     THIS     OP   (CIVIL)    HAVING    COME   UP    FOR    ADMISSION   ON
13.03.2023,    THE    COURT    ON   THE   SAME      DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 633 OF 2023
                                   3

                           JUDGMENT

Feeling aggrieved with Ext.P10 order passed in IA

No.1/2022 in IA No.41/2017 in OS No.1679/2011 by the

Court of the Principal Subordinate Judge, Thrissur, the

defendants in the suit have filed the original petition.

The respondent is the plaintiff.

2. The skeletal relevant facts leading to Ext.P10

order are:

(i) The respondent has filed the suit against the

petitioners for fixation of boundary and other

consequential reliefs. The petitioners have

resisted the suit through Ext.P2 written

statement.

(ii) An Advocate Commissioner has filed Ext.P3

report.

(iii) The 1st petitioner has filed OS No.354/2011 OP(C) NO. 633 OF 2023

before the court below to declare document

No.1313/2009 of the SRO, Erumapetty, is null

and void.

(iv) As per the order in IA No.41/2017 in the present

suit, a survey commission was conducted and

Ext.P5 report has been placed on record. In fact,

there was no necessity to conduct a survey

commission. The 1st petitioner had challenged

the order appointing the survey commission, but

the same was confirmed by this Court. Actually,

the 1st petitioner had filed Ext.P6 work memo.

(v) An Advocate Commissioner inspected the

properties and filed Ext.P7 report and plan.

However, there is no report of the Surveyor

attached to Ext.P7 report which is a flaw

committed by the Advocate Commissioner.

(vi) The petitioner had filed IA No.1/2022 (Ext.P8) to

remit the commission report and sketch, OP(C) NO. 633 OF 2023

principally for measuring out the properties

based on the parent document of the plaint

schedule property. The application was opposed

by the respondent through Ext.P9 written

objection.

(vii) The court below, by the impugned Ext.P10 order,

dismissed Ext.P8 application.

(viii) Ext.P10 is ex-facie illegal and unsustainable in

law.

3. Heard; Sri.G.Sreekumar (Chelur), the learned

Counsel appearing for the petitioners on admission.

4. The question is whether there is any error in

Ext.P10 order.

5. The respondent has filed OS No.1679/2011

against the petitioners for fixation of boundary and other

consequential reliefs.

OP(C) NO. 633 OF 2023

6. The petitioners' contention is that document by

which the respondent claims right over the plaint

schedule property was only executed as security.

Therefore, the said document is null and void.

7. The 1st petitioner has filed OS No.354/2011

before the court below, against the respondent, to

declare the document no:1313/2009 as sham.

8. Thus, the petitioners desire that an Advocate

Commissioner conduct a survey commission as per the

parent document of the plaint schedule property, i.e.,

document No.234/1993.

9. The court below, after analysing the rival

contentions, has concluded that, as the entire rights

covered by document No.234/1993 was assigned to the

respondent by document No.1313/2009, there is no

necessity to measure the plaint schedule property again

as per the parent document because the property is one

and the same, and the question whether the subsequent OP(C) NO. 633 OF 2023

document was executed as a security or not is a matter

to be decided in the suit. Accordingly, the court below

has held that onus of proof is on the petitioners, to

convince the court after adducing evidence, that the

measurements of the plaint schedule property with

reference to the subsequent documents is not as per the

parent document. I do not find any ground or

circumstance to take a divergent view.

Nonetheless, it is clarified that, if all the petitioners

establish that the subsequent document is not executed

as per the parent document and are able to discredit

Ext.P7 report to the satisfaction of the court below, then

the court below shall, at its discretion, decide whether

the commission report is to be remitted or not. With the

above observation, the original petition is dismissed.

Sd/-

C.S.DIAS JUDGE rkc/13.03.23 OP(C) NO. 633 OF 2023

APPENDIX OF OP(C) 633/2023

PETITIONER EXHIBITS

ExhibitP1 A TRUE COPY OF THE PLAINT IN O S NO 587 OF 10 DATED 7.12.10 ON THE FILE OF THE MUNSIFF COURT, WADAKKANCHERY AND LATER TRANSFERRED AND RENUMBERED AS O S NO 1679 OF 11 BEFORE THE PRINCIPAL SUB COURT, THRISSUR

ExhibitP2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS DATED 13.1.11 IN EXT P1 SUIT BEFORE THE MUNSIFF COURT, WADAKKANCHERY, AND NOW PRESENTLY PENDING BEFORE THE PRINCIPAL SUB COURT, THRISSUR

ExhibitP3 A TRUE COPY OF THE COMMISSIONERS REPORT AND PLAN DATED NIL FILED IN O S NO 587 OF 10 BEFORE THE MUNSIFF COURT, WADAKKANCHERY AND NOW PENDING BEFORE THE PRINCIPAL SUB COURT, THRISSUR

ExhibitP4 A TRUE COPY OF THE PLAINT IN O S NO 354 OF 11 ON THE FILE OF THE SUB COURT, THRISSUR DATED 8.3.11

ExhibitP5 A TRUE COPY OF THE JUDGMENT IN O P NO 2335 OF 18 DATED 28.11.18 BY THIS HON'BLE COURT

ExhibitP6 A TRUE COPY OF THE WORK MEMO FILED BY THE FIRST PETITIONER HEREIN IN O S NO 1679 OF 11 BEFORE THE SUB COURT , THRISSUR DATED 12.7.20

ExhibitP7 A TRUE COPY OF THE COMMISSIONERS REPORT AND PLAN SUBMITTED AFTER MEASUREMENT OF THE PROPERTIES IN QUESTION DATED 17.6.22

ExhibitP8 A TRUE COPY OF THE I A NO 1 OF 22 IN I A NO 41 OF 17 IN O S NO 1679 OF 11 BEFORE THE SUB COURT, THRISSUR DATED 25.7.22

ExhibitP9 A TRUE COPY OF THE OBJECTION FILED TO OP(C) NO. 633 OF 2023

EXT P8 FILED AT THE INSTANCE OF THE PLAINTIFF IN THE SUIT DATED 12.9.22

Exhibit P10 A TRUE COPY OF THE ORDER PASSED IN I A NO 1 OF 22 IN I A NO 41 OF 17 IN O S NO 1679 OF 11 BEFORE THE SUB COURT, THRISSUR DATED 8.12.22