Kerala High Court
Varghese vs Babu on 20 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 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
OP(C) NO. 1289 OF 2024
AGAINST THE ORDER DATED 05.02.2024 IN I.A. NO.4 OF 2022 IN
OS NO.139 OF 2014 OF MUNCIFF MAGISTRATE COURT,MANANTHAVADY
PETITIONER/APPLICANT IN I.A./PLAINTIFF IN O.S.:
VARGHESE
AGED 77 YEARS
S/O KURIAKOSE, MATTAMANA HOUSE, ARATTUTHARA
DESOM, MANANTHAVADY TALUK, WAYANAD DISTRICT,
PIN - 670645
BY ADVS.
MANU VYASAN PETER
P.B.KRISHNAN (SR.)
P.B.SUBRAMANYAN
SABU GEORGE
B.ANUSREE
RESPONDENTS/RESPONDENTS NO.1, 3 TO 7 IN I.A./DEFENDANTS
NO.1, 3 TO 7 IN O.S.:
1 BABU
AGED 54 YEARS
S/O SCARIA, MATTAMANA HOUSE, ARATTUTHARA,
MANANTHAVADI, WAYANAD DISTRICT, PIN - 670645
2 POULOSE
AGED 47 YEARS
S/O SCARIA, MATTAMANA HOUSE, ARATTUTHARA,
MANANTHAVADI, WAYANAD DISTRICT, PIN - 670645
3 BABY
AGED 54 YEARS
S/O POULOSE, MATTAMANA HOUSE, ARATTUTHARA,
MANANTHAVADI, WAYANAD DISTRICT, PIN - 670645
4 SHYNI KURIAN
AGED 48 YEARS
W/O LATE KURIAN, MATTAMANA HOUSE, ARATTUTHARA,
2
OP(C) NO.1289 OF 2024
MANANTHAVADI, WAYANAD DISTRICT, PIN - 670645
5 AMAL KURIAN
AGED 25 YEARS
S/O LATE KURIAN, MATTAMANA HOUSE, ARATTUTHARA,
MANANTHAVADI, WAYANAD DISTRICT, PIN - 670645
6 AMITHA KURIAN
AGED 23 YEARS
D/O LATE KURIAN, MATTAMANA HOUSE, ARATTUTHARA,
MANANTHAVADI, WAYANAD DISTRICT, PIN - 670645
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
OP(C) NO.1289 OF 2024
JUDGMENT
Ext.P14 order passed by the Munsiff Court,
Mananthavady (for short 'the trial court') dismissing an
application to set aside the commissioner's report is under
challenge in this Original Petition.
2. The petitioner is the plaintiff and the respondents are
the defendants 1 and 3 to7 in O.S. No.139/2014 on the files
of the trial court. The suit is one for permanent prohibitory
injunction based on possession. The defendants entered
appearance and raised counter claim. The plaintiff's claim
over the plaint schedule property is based on a gift deed
executed by his father in his favour. In order to prove the
case of the plaintiff, a Commission was taken out. The
Commissioner filed interim report and sketch on 15.12.2015.
The plaintiff filed an application to remit the said report and
that was allowed as per the order in I.A. No.353/2016 dated
08.08.2016. The Commissioner filed a supplementary report
on 10.12.2018. The Commissioner identified the plaint
OP(C) NO.1289 OF 2024
schedule property. The plaintiff amended the plaint in tune
with the Commissioner's report and plan, as per the order in
I.A. No.24/2019 dated 02.12.2019. Thereafter, defendant
No.1 filed an application to remit the Commissioner's report
and plan as per I.A. No.20/2019. That application was also
allowed as per the order dated 02.12.2019. The
Commissioner filed the second supplementary report on
28.06.2022. It is to set aside the said report, the plaintiff
filed Ext.P12 application. It was dismissed as per Ext.P14
order. It is challenging the said order, this Original Petition
has been filed.
3. I have heard Sri. Manu Vyasan Peter, the learned
counsel for petitioner.
4. The plaintiff's case is based on possession. He traces
out the possession on the basis of a gift deed. A
Commissioner was initially appointed to identify the
property. At the instance of the plaintiff, the report was
remitted and a supplementary report and plan were
OP(C) NO.1289 OF 2024
submitted. The plaintiff accepted the said report and plan
and even amended the plaint in tune with the commission
application. Now, the case of the plaintiff is that the
Commissioner did not identify the counter claim schedule
property. It is up to the defendant to get the counter claim
schedule property identified to prove his case. The plaintiff's
case being based on possession, the title to the property and
identification of the plaint schedule property on the basis of
title does not arise at all. That apart, the Commissioner has
already identified the plaint schedule property on the basis
of title deed relied upon by the plaintiff and also on the basis
of possession. The plaintiff has even amended the plaint in
tune with the said Commission report. Hence, I find no
illegality or impropriety in the impugned order dismissing
the application to set aside the Commissioner's report. The
plaintiff is free to take up all the contentions raised in
Ext.P12 during trial.
OP(C) NO.1289 OF 2024
This Original Petition is dismissed with the above
observations.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
OP(C) NO.1289 OF 2024
APPENDIX OF OP(C) 1289/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE AMENDED PLAINT DATED
01.12.2014 IN O.S NO. 139 OF 2014 ON THE
FILE OF THE MUNSIFF'S COURT,
MANANTHAVADY
Exhibit P2 TRUE COPY OF THE COUNTER-CLAIM DATED
05.01.2015 IN O.S NO. 139 OF 2014 ON THE
FILE OF THE MUNSIFF'S COURT,
MANANTHAVADY
Exhibit P3 TRUE COPY OF THE REPLICATION DATED
10.01.2016 IN O.S NO. 139 OF 2014 ON THE
FILE OF THE MUNSIFF'S COURT,
MANANTHAVADY
Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT DATED
16.07.2019 IN O.S NO. 139 OF 2014 ON THE
FILE OF THE MUNSIFF'S COURT,
MANANTHAVADY
Exhibit P5 TRUE COPY OF THE ADDITIONAL WRITTEN
STATEMENT/REPLICATION DATED 09.12.2022
IN O.S NO. 139 OF 2014 ON THE FILE OF
THE MUNSIFF'S COURT, MANANTHAVADY
Exhibit P6 TRUE COPY OF THE REPORT AND ROUGH-SKETCH
DATED 15.12.2015 IN O.S NO. 139 OF 2014
ON THE FILE OF THE MUNSIFF'S COURT,
MANANTHAVADY
Exhibit P7 TRUE COPY OF THE COMMISSION REPORT AND
PLAN DATED 10.12.2018 IN O.S NO. 139 OF
2014 ON THE FILE OF THE MUNSIFF'S COURT,
MANANTHAVADY
Exhibit P8 TRUE COPY OF THE OBJECTION DATED
04.01.2019 TO THE COMMISSION REPORT IN
O.S NO. 139 OF 2014 ON THE FILE OF THE
MUNSIFF'S COURT, MANANTHAVADY
Exhibit P9 TRUE COPY OF THE APPLICATION DATED
NIL.01.2019 I.A NO. 20 OF 2019 IN O.S
NO. 139 OF 2014 ON THE FILE OF THE
MUNSIFF'S COURT, MANANTHAVADY
Exhibit P10 TRUE COPY OF THE COUNTER-STATEMENT DATED
NIL.02.2019 IN I.A NO. 20 OF 2019 IN O.S
NO. 139 OF 2014 ON THE FILE OF THE
OP(C) NO.1289 OF 2024
MUNSIFF'S COURT, MANANTHAVADY
Exhibit P11 TRUE COPY OF THE COMMISSION REPORT AND
PLAN DATED 28.06.2022 IN O.S NO. 139 OF
2014 ON THE FILE OF THE MUNSIFF'S COURT,
MANANTHAVDY
Exhibit P12 TRUE COPY OF I.A NO. 4 OF 2022 DATED
15.12.2022 IN O.S NO. 139 OF 2014 ON THE
FILE OF THE MUNSIFF'S COURT,
MANANTHAVADY
Exhibit P13 TRUE COPY OF THE COUNTER-STATEMENT DATED
09.01.2023 IN I.A NO. 4 OF 2022 IN O.S
NO. 139 OF 2014 ON THE FILE OF THE
MUNSIFF'S COURT, MANANTHAVADY
Exhibit P14 TRUE COPY OF THE ORDER DATED 05.02.2024
IN I.A NO. 4 OF 2022 IN O.S NO. 139 OF
2014 ON THE FILE OF THE MUNSIFF'S COURT,
MANANTHAVADY
RESPONDENTS' EXHIBITS: NIL
