Kerala High Court
K.K.Abraham vs K.John Abraham on 21 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
OP(C) NO. 556 OF 2016
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.128 OF 2001 OF
MUNSIFF COURT, THIRUVALLA
PETITIONER/COUNTER PETITIONER:
K.K.ABRAHAM
AGED 47 YEARS, S/O.KURUVILLA,
KAYAPPURATHU VEEDU, KAVUMBHAGOM MURI,
KAVUMBHAGAOM VILLAGE,
THIRUVALLA, PATHANAMTHITTA
BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)
RESPONDENTS/PETITIONER/COUNTER PETITIONER 2 & 3:
1 K.JOHN ABRAHAM
AGED 47 YEARS, S/O.JOHN KAYAPPURATHU VEEDU,
KAVUMBHAGOM MURI, KAVUMBHAGOM VILLAGE,
THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN 686519
2 THOMAS JOHN
AGED 35 YEARS, S/O.JOHN KAYAPPURATHUVEEDU,
KAVUMBHAGOM MURI, KAVUMBHAGOM VILLAGE,
THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN 686519
3 K J ABAHAM
AGED 52 YEARS, S/O.JOHN,
KAYAPPURATHUVEEDU, KAVUMBHAGOM MURI,
KAVUMBHAGOM VILLAGE, THIRUVALLA,
PATHANAMTHITTA DISTRICT, PIN 686519
4 MERCY ABRAHAM
KAYAPPURATH HOUSE, KUTTOMPEROOR P.O,
MANNAR, ALAPPUZHA DISTRICT. PIN- 689622
(IMPLEADED AS PER ORDER DATED 21.05.2024
IN I.A.NO.1/2022)
BY ADVS.
SRI.ARUN THOMAS
K.N.RADHAKRISHNAN (THIRUVALLA)- R4
SRI.JENNIS STEPHEN
SRI.SANTHOSH MATHEW
SRI.SATHISH NINAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No. 556/2016
..2..
JUDGMENT
Exhibits P3 and P4 orders passed by the Munsiff Court, Thiruvalla are
under challenge in this original petition.
2. The suit is one for declaration of the easement right and for
permanent prohibitory injunction. The petitioner herein is the 1 st defendant
and the respondents are the plaintiff and defendants 2 and 3. Initially, the suit
was decreed and it was challenged before the 1 st Appellate Court. The appeal
was partly allowed and remanded back to the Trial Court for fresh disposal. In
the remand order, the plaintiff was directed to take steps to appoint an
Advocate Commissioner to measure out the properties with the assistance of
the Surveyor to find out whether any portion of item Nos.1 to 3 of the plaint
schedule were dedicated to create item No.5 pathway.
3. After remand, the plaintiff filed Ext.P2 application to appoint an
Advocate Commissioner. The learned Munsiff allowed Ext.P2 application as
per Ext.P3 order. Thereafter, the petitioner filed I.A.No.2488/2015 to review
the order in Ext.P3. The said application was also dismissed as per Ext.P4
order. It is challenging Exts.P3 and P4 orders, this original petition has been
filed.
4. I have heard both sides.
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5. In the remand order, it was observed that the plaintiff shall take
steps to appoint an Advocate Commissioner to measure out the properties
with the assistance of the Surveyor to ascertain whether any portion of plaint
item Nos.1 to 3 were dedicated to create item No.5 pathway. The grievance of
the petitioner/1st defendant is that, in the commission application, the plaintiff
wanted to measure the plaint schedule items on the basis of the commission
report filed in another case. The learned Munsiff found that considering the
facts and circumstances of the case, such a measurement is necessary. The
direction in the remand order was to measure the properties with the
assistance of a Surveyor for the purpose of ascertaining whether any portion
of items Nos.1 to 3 were dedicated to create item No.5 pathway. There is no
observation that the properties should be measured in a particular manner. It
is up to the trial court to decide in what manner the properties have to be
measured. Moreover, measuring the property as sought for by the plaintiff
would not in any way cause prejudice to the 1st defendant.
I see no illegality or impropriety in the impugned order. According, this
origional petition is dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
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APPENDIX OF OP(C) 556/2016
PETITIONER EXHIBITS
EXHIBIT P1 COPY OF JUDGMENTS IN AS NO 36/2005 OF THE
SUBORDINATE JUDGES COURT, THIRUVALLA
EXHIBIT P2 COPY OF IA 1966/2015 IN OS 158/2001 OF MUNSIFF
COURT, THIRUVALLA
EXHIBIT P3 COPY OF ORDER IA 1966/2015 IN OS NO 158/2001
OF MUNSIFF COURT THIRUVALLA DTD 25/7/2015
EXHIBIT P4 COPY OF ORDER IA 2488/2015 IN OS NO 158/2001
OF MUNSIFF COURT THIRUVALLA DTD 6/1/2016
