Kerala High Court
C.K. Omana vs Rajan Pillai on 6 June, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
OP(C) NO. 2022 OF 2023
ORDER DATED 14.09.2023 IN IA 3/2023 IN OS NO.525 OF 2012 OF
MUSNIFF COURT,ADOOR
PETITIONERS/PETITIONERS/DEFENDANTS IN OS 525/12:
1 C.K. OMANA
AGED 72 YEARS
LINU SADANAM, PADUKOTTUKKAL, THATTAYIL P.O.,, PIN
- 691525
2 P.V. LINUKUMAR, AGED 44 YEARS
LINU SADANAM, PADUKOTTUKKAL, THATTAYIL P.O.,
PANDALAM, PIN - 691525
BY ADVS.
A.BALAGOPALAN
A.RAJAGOPALAN
M.N.MANMADAN
M.S.IMTHIYAZ AHAMMED
P.SEENA
VISWANATH SALISH
PRABHU MURALI KRISHNAN
A.R. AMAL
RESPONDENTS/RESPONDENTS/PLAINTIFFS IN OS 525/12:
1 RAJAN PILLAI
AGED 74 YEARS
SMITHA BHAVAN, PADUKOTTUKKAL, THATTAYIL, PIN -
691525
O.P.(C).No.2022/2023
-:2:-
2 REVAMMA
AGED 69 YEARS
SMITHA BHAVAN, PADUKOTTUKKAL, THATTAYIL, PIN -
691525
BY ADVS.
NIRMAL V NAIR
ARATHI PRABHAKARAN(K/001158/2022)
ENCIL K. SABU(K/771/2023)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No.2022/2023
-:3:-
JUDGMENT
Ext.P12 order passed by the Munsiff Court, Adoor (for short
'the trial court') is under challenge in this original petition.
2. The petitioners are the defendants and the
respondents are the plaintiffs in O.S.No.525/2012 on the files of
the trial court. The suit is one for declaration and permanent
prohibitory injunction. The petitioners are also plaintiffs in
O.S.No.70/2013 and the respondents are the defendants therein.
The said suit was one for declaration of title, fixation of boundary
and also for permanent prohibitory injunction. Both suits were
ordered to be tried jointly. A commissioner was appointed to
inspect the property and file interim report. Thereafter, the
petitioners herein filed I.A.No.1/2020 to change the surveyor. In
the meanwhile, the suit was listed for trial. The petitioners filed
Ext.P11 application praying that the suit shall not be disposed of
without taking a decision in I.A.No.1/2020. The trial court after
hearing both sides, dismissed the said application as per Ext.P12
order. It is challenging the said order, this original petition has
been filed.
3. I have heard Sri. A. Balagopalan, the learned counsel
for the petitioners and Sri. Nirmal V. Nair, the learned counsel for
the respondents.
Since the suit is one for declaration of title, fixation of
boundary, mandatory injunction, permanent prohibitory
injunction etc., the appointment of commissioner for proper
identification of the property is absolutely necessary for resolving
the dispute between the parties. The commissioner has filed an
interim report. In the meanwhile, the petitioners wanted to
change the surveyor and they filed I.A.No.1/2020. The said
application was initially allowed by the trial court. However, the
respondents filed a review application stating that they were not
heard before allowing the application. Hence the review
application was allowed. Thereafter, no order was passed in
I.A.No.1/2020. In the meanwhile, the suit was listed for trial.
Since the commissioner did not file the final report, the trial court
ought not have listed the suit for trial. Hence, Ext.P12 order is
set aside. The trial court is directed to dispose of I.A.No.1/2020
within a period of two weeks from the date of receipt of a copy of
this judgment, after hearing both sides. Thereafter, the trial
court shall proceed with the trial of the suit.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
APPENDIX OF OP(C) 2022/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT DATED 20.12.2012
IN O.S NO 525 OF 2012 ON THE FILE OF THE
MUNSIFF'S COURT ADOOR
Exhibit P2 THE TRUE COPY OF THE WRITTEN STATEMENT
DATED 04.07.2013 FILED BY THE
PETITIONERS IN EXHIBIT P1 SUIT
Exhibit P3 TRUE COPY OF THE PLAINT DATED 13.02.2013
IN O.S NO 70 OF 2013 ON THE FILE OF
MUNSIFF'S COURT ADOOR
Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT DATED
09.07.2014 FILED BY THE RESPONDENTS IN
EXHIBIT P3 SUIT
Exhibit P5 TRUE COPY OF THE INTERIM REPORT
SUBMITTED BY ADV K K SAROJINI AMMA
Exhibit P6 THE TRUE COPY OF I.A NO 1 OF 2020 IN O.S
NO 525 OF 2012 DATED 29.02.2020
SUPPORTED BY THE AFFIDAVIT OF THE SECOND
PETITIONER
Exhibit P7 TRUE COPY OF THE ORDER PASSED BY
MUNSIFF'S COURT ADOOR IN I.A NO 1 OF
2020 IN O.S NO 525 OF 2012 AND O.S NO 70
OF 2013 DATED 15.12.2020
Exhibit P8 THE TRUE COPY OF I.A NO 2 OF 2021 IN I.A
NO 1 OF 2020 IN O.S NO 525 OF 2012 AND
O.S NO 70 OF 2013 DATED 25.02.2021
Exhibit P9 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONERS IN I.A NO 2 OF 2021 IN I.A
NO 1 OF 2020 IN O.S NO 525 OF 2012 AND
O.S NO 70 OF 2013 DATED 06.09.2021
Exhibit P10 TRUE COPY OF THE ORDER I.A NO 2 OF 2021
IN O.S NO 525 OF 2012 DATED 19.03.2022
PASSED BY THE MUNSIFF'S COURT ADOOR
Exhibit P11 TRUE COPY OF THE I.A NO 3 OF 2023 IN O.S
NO 525 OF 2012 AND O.S NO 70 OF 2013
DATED 14.09.2023
Exhibit P12 TRUE COPY OF THE ORDER PASSED IN I.A NO
3 OF 2023 IN O.S NO 525 OF 2012 AND O.S
NO 70 OF 2013 DATED 14.09.2023
RESPONDENT EXHIBITS
Exhibit R1(A) A true copy of the plan and report
submitted by the surveyor dated nil
