Kerala High Court
K.S. Ratheesh vs Honey George on 30 March, 2023
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OP(C) No. 767 of 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
OP(C) NO. 767 OF 2023
AGAINST THE ORDER/JUDGMENT IN IA 2/2020 IN OS 124/2013 OF II
ADDITIONAL MUNSIFF COURT, ERNAKULAM
PETITIONER/S:
1 K.S. RATHEESH
AGED 46 YEARS
S/O. SADANANDAN, KOCHUTHARA PARAMBIL, POONITHURA
VILLAGE, KANAYANNUR TALUK, POONITHURA P.O.,, PIN -
682038
2 MANJU RATHEESH
AGED 43 YEARS, W/O. K.S. RATHEESH, KOCHUTHARA
PARAMBIL, POONITHURA VILLAGE, KANAYANNUR TALUK,
POONITHURA P.O.,, PIN - 682038
BY ADV M.SHYJU
RESPONDENT/S:
1 HONEY GEORGE
AGED 51 YEARS, S/O. GEORGE, PONNASSERY HOUSE,
POONITHURA VILLAGE, KANAYANNUR TALUK, REPRESENTED
BY HIS WIFE AND ESTATE MANAGER, JANCY HONEY, AGED
47 YEARS, PONNASSERY HOUSE, POONITHURA VILLAGE,
KANAYANNUR TALUK,, PIN - 682038
2 JANCY HONEY,
AGED 47 YEARS, PONNASSERY HOUSE, POONITHURA
VILLAGE, KANAYANNUR TALUK,, PIN - 682038
BY SRI.ABRAHAM P GEORGE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C) No. 767 of 2023
C.S DIAS,J.
---------------------------
OP(C) No. 767 of 2023
-----------------------------
Dated this the 30th day of March, 2023.
JUDGMENT
Aggrieved by Ext P7 order passed in IA
No.2/2020 in OS No.124/2013 by the Court of the
Second Additional Munsiff, Ernakulam, the
defendants in the suit have filed the original petition.
The respondents are the plaintiffs.
2. The concise background facts leading to Ext
P7 order are:
2.(i). The respondents have filed the suit, against
the petitioners, for fixation of western and southern
boundaries of the plaint schedule property and for
OP(C) No. 767 of 2023
consequential reliefs. The petitioners have resisted the
suit by filing a written statement.
2.(ii). An Advocate Commissioner and an expert
Engineer were appointed, who have filed Ext P1
report.
2.(iii). Later, a survey commission was taken out
and Exts P4 report and plan are also on record.
2.(iv). Then, the respondents filed IA No.2/2020
(Ext P5) to set aside Exts P4 report and plan. The
application was opposed by the petitioners through Ext
P6 counter affidavit .
2. (v). The court below, by the impugned Ext P7
order, has partly allowed Ext P5 application by
remitting Exts P4 report and plan.
OP(C) No. 767 of 2023
2.(vi). This Court, by Ext P8 judgment in
OP(C)No.2484/2022 dated 10.2.2023, has directed the
court below to dispose of the suit within three months
after the completion of pre-trial steps.
2.(vii). Ext P7 order is manifestly wrong and
unsustainable in law. Hence, the original petition.
3. Heard; Sri.M.Shyju, the learned counsel
appearing for the petitioners and Sri.Abraham
P.George, the learned counsel appearing for the
respondents.
4. The question is, whether there is any error in
Ext P7 order.
5. On an appreciation of the pleadings and
materials on record, it can be deciphered that it was the
OP(C) No. 767 of 2023
respondents who have filed Ext P5 application to set
aside Ext P4 report and plan. In fact, the petitioners
have opposed Ext P5 application through Ext P6
counter affidavit, inter alia, contending that there is no
necessity to set aside the report. Nonetheless, the
court below, by the impugned Ext P7 order, after
elaborately considering the oral testimonies of the
Advocate Commissioner and Surveyor and the other
materials on record, deemed it fit to remit Exts P4
report and plan, for the purpose of identifying the
properties as per title deeds.
6. It is this order that the petitioners now assail in
the original petition.
7. I am at loss to understand the justification of
the petitioners to assail Ext P7 order after having
OP(C) No. 767 of 2023
opposed Ext P4 application filed by the respondents to
set aside the commission report. The petitioners have
not even filed an objection to Ext P4 report and plan.
The court below, without setting aside the report, has
only remitted the same for fresh consideration.
Therefore, it is preposterous for the petitioners to now
aspire to get Ext P4 report and plan set aside. I do
not find any ground made out in the original petition
warranting the exercise of the power of
superintendence of this Court under Article 227 of the
Constitution of India. The original petition sans
substance or merits and is consequentially dismissed.
SD/-
sks/30.3.2023 C.S.DIAS, JUDGE
OP(C) No. 767 of 2023
APPENDIX OF OP(C) 767/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMMISSION REPORT DATED
1.2.2019 IN I.A. NO. 9018/2018 IN O.S.
NO. 124/2013
Exhibit P2 TRUE COPY OF PLAINT IN O.S. NO. 124/2013
PENDING ON THE FILES OF THE 2ND
ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
DATED 7.2.2013
Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT DATED
4.4.2013 IN THE SUIT
Exhibit P4 TRUE COPY OF SURVEY COMMISSION REPORT
SUBMITTED BY THE ADVOCATE COMMISSION
ALONG WITH SURVEY PLAN DATED 16.6.2020
Exhibit P5 TRUE COPY OF PETITION, I.A. NO. 2/2020 IN
O.S. NO. 124/2013, TO SET ASIDE THE
COMMISSION REPORT AND SKETCH DATED
21.7.2020
Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT DATED
4.9.2021 FILED BY THE PETITIONERS IN I.A.
NO. 2/2020 FOR SETTING ASIDE THE
COMMISSION REPORT AND SKETCH IN I.A. NO.
6652/2017
Exhibit P7 TRUE COPY OF THE ORDER DATED 2.2.2023 IN
I.A. NO. 2/2020 IN O.S. NO. 124/2013 OF
II ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
Exhibit P8 TRUE COPY OF JUDGMENT IN O.P.(C) NO. 2484
OF 2022 DATED 10.2.2023 OF THIS HON'BLE
COURT
