Kala S vs Biju
2024 Latest Caselaw 22 Ker

Kerala High Court

Kala S vs Biju on 3 January, 2024

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
  WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945


                    OP(C) NO. 2707 OF 2023
   AGAINST THE ORDER/JUDGMENT OS 179/2011 OF MUNSIFF COURT,
                            PUNALUR


PETITIONER/RESPONDENT/PLAINTIFF:

          KALA S
          AGED 44 YEARS
          WIFE OF SRI. ANIL KUMAR SIVASAKTHI VILLA, PLACHERY P
          O, KALAYANADU VALACODE VILLAGE, PUNALUR TALUK,
          PIN - 691331
          BY ADV BINU MATHEW


RESPONDENTS/PETITIONERS/DEFENDANTS:

    1     BIJU
          S/O PEETHAMBARAN ,NEDUMPARAMBIL VEEDU PLACHERY P O ,
          VALACODE VILLAGE ,PUNALUR TALUK, KOLLAM .
          PIN - 691331
    2     GANGADHARAN
          AGED 74 YEARS
          VALUTHUNDIL VEEDU ,PLACHERY P O , KALAYANADU
          VALACODE VILLAGE, PUNALUR TALUK, KOLLAM ,
          PIN - 691331
    3     REGHUNADHAN
          AGED 56 YEARS
          S/O RAJAMMA, BAKTHI VILASAM VEEDU, PLACHERY P. O.
          VALACODE VILLAGE, PUNALUR TALUK, KOLLAM ,
          PIN - 691331
    4     SIVADASAN
          AGED 64 YEARS
          S/O RAGHAVAN, LALITHA VILASOM VEEDU, PLACHERY P O ,
          VALACODE VILLAGE PUNALUR TALUK, KOLLAM, PIN - 691331
 O.P.(C) NO.2707 OF 2023
                               2


    5      SANTHOSH KUMAR
           AGED 47 YEARS
           S/O SASIDHARAN , SANTHOSH BHAVAN, PLACHERY P. O.
           VALACODE VILLAGE, PUNALUR TALUK, KOLLAM, NOW
           RESIDING AT " GOPIKA SADANAM", PLACHERY P. O.
           VALACODE VILLAGE, PUNALUR TALUK, KOLLAM,
           PIN - 691331
    6      OMANAKUTTAN
           AGED 49 YEARS
           S/O DEVAYANI, BHAKTHIVILASOM MELATHIL, PLACHERY
           P. O.VALACODE VILLAGE, PUNALUR TALUK, KOLLAM .,
           PIN - 691331
    7      SUDHEESH
           AGED 48 YEARS
           S/O SARASWATHY, VALUTHUNDIL VEEDU, PLACHERY P. O.
           VALACODE VILLAGE, PUNALUR TALUK ,KOLLAM.,
           PIN - 691331
    8      SANTHOSH
           AGED 41 YEARS
           S/O BHASKARAN, LALITHA VILASOM VEEDU PLACHERY P O ,
           VALACODE VILLAGE, PUNALUR TALUK., PIN - 691331
           BY ADV SREEJITH S



    THIS   OP   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON

03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C) NO.2707 OF 2023
                                        3


                                   JUDGMENT

The plaintiff in O.S. No.179/2011 of the Munsiff

Court, Punalur is the petitioner herein. He is

aggrieved by Ext.P8 order, which allowed Ext.P6

commission application. According to the petitioner,

the short compass of controversy is with respect to

prayer No.3 in Ext.P6 application, which is beyond the

scope of the reliefs claimed for in the counter claim.

It was also contended that relief No.3 sought for is

not strictly in accord with the mandate in Ext.P4

first appellate judgment and Ext.P5 judgment of this

Court in the second appeal.

2. Heard the learned counsel appearing for the

petitioner and the learned counsel for the

respondents.

3. Learned counsel for the respondents submits

that Ext.P4 judgment categorically directs in O.P.(C) NO.2707 OF 2023

paragraph No.12, that the measurement of the entire 26

cents of land is required to identify the plaint

schedule property and the counter claim schedule

property. There is also an observation that, if there

is reduction in the extent of plaint schedule

property, the same can also be reported, on which

basis the properties of the parties can be identified.

It is the specific submission of the learned counsel

for the respondent that the said observation has not

been dislodged in Ext.P5 judgment of this Court

dismissing the second appeal. In the circumstances,

there is nothing wrong in prayer No.3 to Ext.P6

commission application, is the submission made by the

learned counsel for the petitioner.

4. This was seriously opposed by the learned

counsel for the petitioner. Learned counsel would,

however, clarify that the petitioner is not against

measuring the entire 26 cents of land for the purpose O.P.(C) NO.2707 OF 2023

of locating the plaint and counter claim schedule

properties.

5. Having heard the learned counsel appearing on

both sides, this Court is in the opinion that the

Original Petition can be disposed of sustaining Ext.P8

order, however with a clarification. As rightly

contended by the learned counsel for the respondent,

there is a peremptory direction/observation in Ext.P4

judgment of the learned Sub Judge that the measurement

of the entire extent of 26 cents of land, which

allegedly belonged to one Kesavan, is required to

ascertain and identify the plaint and counter claim

schedule properties. The reduction in the extent, if

any, was also directed to be reported, so as to have a

correct identification and location of the scheduled

properties. It is true that these directions as

contained in Ext.P4 judgment has not been interfered

by this Court in Ext.P5 judgment. That being so, there O.P.(C) NO.2707 OF 2023

cannot be any controversy/dispute with respect to

measurement of the entire extent of 26 cents, to which

learned counsel for the petitioner also has no

objection. However, point No.3 which is sought to be

ascertained in Ext.P6 commission application is the

fulcrum of dispute and is therefore extracted here

below:

........................ 3. പത്രികപ്പട്ടിക 4 സെൻ്റും അതിന് വടക്കുള്ള വാദി കല പേർക്കുള്ള 14346-ാം നമ്പർ തണ്ടപ്പേരും പ്രകാരമുള്ള 14 സെന്റ് ഉൾപ്പെടെ 18 സെന്റ് സ്ഥലമല്ലാതെ അതിർത്തിയ്ക്കുളിൽ 826/2006-ാം നമ്പർ പ്രമാണത്തിൽ വിവരിയ്ക്കുന്ന പ്രകാരമുള്ള 26 സെന്റ് വസ്‌തുവോ 22 സെൻ്റ് വസ്‌തുവോ ഉണ്ടോ എന്നു സർവ്വെ ചെയ്ത് പരിശോധിച്ച് റിക്കാർഡു ചെയ്ത് പ്ലാൻ തയ്യാറാക്കണം. ....................................................

6. This Court is in the opinion that the

measurement in terms of point No.3, as extracted

above, is not strictly required. Nor does such a

measurement emanates from Ext.P4 judgment of the

learned Sub Judge, or for that matter, Ext.P5 judgment

of this Court. Both the judgments only directed O.P.(C) NO.2707 OF 2023

measurement of the entire 26 cents of the land for

proper identification of the plaint and counter claim

schedule properties. In the circumstances, the

requirements will be satisfied, if the entire 26

cents of land is measured out, so as to identify the

plaint and counter claim schedule properties; focus

and thrust being on the identification of the plaint

and counter claim schedule properties. Ext.P8 order

will stand modified to the limited extent indicated

above.

With this observation, this Original Petition will

stand disposed of.

Sd/-

C. JAYACHANDRAN JUDGE BR O.P.(C) NO.2707 OF 2023

APPENDIX OF OP(C) 2707/2023

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE AMENDED PLAINT WITH DOCUMENTS IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 03-11-2011 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 14.03.2018 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 21-12-2019 IN AS NO.46/2018 OF SUB COURT, PUNALUR Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 23-08-2022

Exhibit P6 TRUE COPY OF THE I.A. 1/2021 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR DATED 18.01.2021 Exhibit P7 TRUE COPY OF THE OBJECTION DATED 06-03-2023 IN I.A. 1/2021 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR Exhibit P8 TRUE COPY OF THE ORDER DATED 04-10-2023 IN I.A. 1/2021 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR

RESPONDENT'S EXHIBITS: NIL