Kerala High Court

Shahinsha vs Rafeek on 30 September, 2024

O.P(C). No.2127 of 2024           1

                                                       2024:KER:72555

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

     MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946

                          OP(C) NO. 2127 OF 2024

          AGAINST THE ORDER DATED 29.08.2024 IN IA 3/2024 IN OS

NO.224 OF 2012 OF MUNSIFF COURT,ATTINGAL


PETITIONER/ADDITIONAL 5TH PLAINTIFF:

              SHAHINSHA, AGED 36 YEARS
              S/O. LATE M.M. SHIBILY, MEDAYIL VEEDU, PARVATHYPURAM
              GRAMOM, ATTINGAL P.O., THIRUVANANTHAPURAM, PIN -
              695101


              BY ADVS.
              M.GOPIKRISHNAN NAMBIAR
              CHETHAN KRISHNA R.
              JOSON MANAVALAN
              PAULOSE C. ABRAHAM




RESPONDENTS/DEFENDANT, PLAINTIFF (DIED) ADDITIONAL PLAINTIFFS 2
TO 4:

      1       RAFEEK, S/O. MOHAMMED YUNUS,
              PLAVILA PUTHEN VEEDU, KUNNATHUKONAM,
              NAGAROOR, KILIMANOOR, THIRUVANANTHAPURAM,
              PIN - 695601

      2       SHIBILI (DIED),MEDAYIL VEEDU,
              PARVATHYPURAM GRAMAM, ATTINGAL P.O.,
              THIRUVANANTHAPURAM, PIN - 695101

      3       NOORJAHAN, AGED 69 YEARS
              W/O. LATE M.M. SHIBILY, MEDAYIL VEEDU,
              PARVATHYPURAM GRAMAM, ATTINGAL P.O.,
              THIRUVANANTHAPURAM, PIN - 695101

      4       SHIJIN M, AGED 42 YEARS
              INCORRECTLY STATED AS "SHYIN M.' IN ORDER,
 O.P(C). No.2127 of 2024             2

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                 AGED 42 YEARS, D/O. LATE M.M. SHIBILY,
                 MEDAYIL VEEDU, PARVATHYPURAM GRAMAM,
                 ATTINGAL P.O., THIRUVANANTHAPURAM, PIN - 695101

      5          SHIJIMA, AGED 40 YEARS
                 INCORRECTLY STATED AS "SHYINA' IN ORDER,
                 AGED 40 YEARS, D/O. LATE M.M. SHIBILY,
                 MEDAYIL VEEDU, PARVATHYPURAM GRAMAM, ATTINGAL P.O.,
                 THIRUVANANTHAPURAM, PIN - 695101



          THIS    OP   (CIVIL)   HAVING   COME   UP   FOR    ADMISSION   ON
30.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P(C). No.2127 of 2024                       3

                                                                                2024:KER:72555

                                   VIJU ABRAHAM, J.
                   .................................................................
                               O.P(C). No.2127 of 2024
                   .................................................................
                  Dated this the 30th day of September, 2024


                                         JUDGMENT

The above original petition is filed challenging Ext.P16 order

dated 29.08.2024 in I.A.No.3 of 2024 in O.S.No.224 of 2012 on the file of

the Munsiff's Court, Attingal whereby the application filed for appointment

of an advocate commission along with a surveyor was rejected.

2. Petitioner is the additional 5th plaintiff in O.S.No.224 of 2012 on

the file of the Munsiff's Court, Attingal, a suit filed for fixation of boundary,

permanent prohibitory injunction and other ancillary reliefs. It is contended

that the plaintiffs are the absolute owners in possession of 3.23 acres of

land which is the plaint schedule property. The original plaintiff had been

paying land tax for the entire extent of 3.23 acres till 2010-2011. There

were no alienations from the said land after1992 and there is no serious

dispute raised by the defendant in his written statement regarding the

extent of property owned by the plaintiffs. At the time of filing of suit, a

commission for local investigation was taken out and the advocate

commissioner filed Ext.P8 report. Later on a second commission was

taken out at the instance of the defendant to identify the plaint schedule

property and his property for the purpose of the counter claim raised by

2024:KER:72555

him. The said advocate commissioner visited the properties and filed a

report and survey plan. The said report is not produced for perusal of this

Court, but it is contended by the petitioner that the present commission

report and the commission report based on the application filed by the

defendant are incorrect and have nothing to do with the ground reality.

Thereupon the plaintiffs filed I.A.No.1 of 2022 to appoint a commission for

local investigation with the assistance of a surveyor. The said application

was allowed and Ext.P10 report was filed by the advocate commissioner.

Petitioner aggrieved by Ext.P10 report filed Ext.P11 objection pointing out

the glaring defects in the report and plan. Thereupon petitioner preferred

Ext.P12, I.A.No.3 of 2024 for appointment of another commission for local

investigation assisted by a surveyor to file a supplementary report. The

said application was dismissed by the trial court as per Ext.P16 order

which is challenged in this original petition. The specific contention of the

petitioner is that the plaint schedule property is 3.23 acres and not 1.45

acres as shown in Ext.P10 commission report. Petitioner contends that

there is drastic difference in the extent of the property actually available in

the plaint schedule and the extent recorded by the advocate

commissioner and the advocate commissioner has not made any attempt

to go through or understand the title deed of the petitioner and that the

plaint schedule property was not identified with the help of any title deed.

Petitioner submits that there is no purpose in trial of the suit without

2024:KER:72555

proper identification of the property and therefore the application for

appointment of an advocate commissioner along with a surveyor ought to

have been allowed by the trial court.

3. I have heard the learned counsel for the petitioner.

4. In this case there are three commission reports, one at the time

of filing of the suit and another commission report at the instance of the

defendant and Ext.P10 commission report along with a plan prepared at

the instance of the plaintiffs. Admittedly the suit is of the year 2012 and

the court has entered a finding that the objection to the commission report

raised by the petitioner can be ascertained at the time of trial and

presently there is no necessity for a supplementary report. The trial court

has also noted that the present petition is filed after the suit has been

listed for trial and that no request was made by the petitioner for filing an

application earlier and the petitioner had sufficient opportunity to raise

such a request earlier. A perusal of Ext.P10 commission report also

would reveal that the plaintiffs are paying tax only in respect of 1.45 acres

though it is stated by the petitioner that he has filed a complaint before

the revenue authorities since the same is only due to an error in re-

survey. There are two commission reports which are prepared with the

assistance of a surveyor. Petitioner contends that both the commission

reports are not correct. The trial court while dismissing the application as

per Ext.P16 has held that the objection regarding commission reports

2024:KER:72555

raised by the petitioner can be ascertained at the time of trial and the

present scenario does not demand a supplementary report. It is well

within the powers of the court that during the trial and after considering

the evidence before the court, if the court is of the view that the present

commission report is not sufficient for a just and proper disposal of the

suit, to appoint an advocate commissioner for ascertaining the facts.

Therefore, I am of the view that there is no merit in the contention now

raised by the petitioner and I find no reason to interfere with Ext.P16

order. But, it is made clear that the trial court is at liberty to appoint an

advocate commissioner along with a surveyor if the court during the trial

and on appreciation of evidence feels that appointment of an advocate

commissioner along with a surveyor is absolutely necessary for a just and

proper disposal of the case.

With the said observation the original petition is disposed of.

Sd/-

VIJU ABRAHAM JUDGE

cks

2024:KER:72555

APPENDIX OF OP(C) 2127/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT IN O.S. 224/2012 ON THE FILE OF THE MUNSIFF COURT, ATTINGAL, DATED 28.12.2012

Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT ALONG WITH COUNTER CLAIM FILED BY THE DEFENDANT, DATED 22.10.2013

Exhibit P3 TRUE COPY OF THE DOCUMENT NO. 4358/1975 OF KILIMANOOR S.R.O., DATED 27.12.1975

Exhibit P4 TRUE COPY OF THE DOCUMENT NO. 2362/1992 OF KILIMANOOR S.R.O., DATED 19.08.1992

Exhibit P5 TRUE COPY OF THE DOCUMENT NO. 2363/1992 OF KILIMANOOR S.R.O., DATED 19.08.1992

Exhibit P6 TRUE COPY OF THE DOCUMENT NO. 2364/1992 OF KILIMANOOR S.R.O., DATED 19.08.1992

Exhibit P7 TRUE COPY OF THE DOCUMENT NO. 3222/1993 OF KILIMANOOR S.R.O., DATED 19.11.1993

Exhibit P8 TRUE COPY OF THE FIRST COMMISSION REPORT FILED BY ADV. BINDUMOL A.R., DATED 23.08.2023 IN O.S. 224/2012 ON THE FILE OF THE MUNSIFF COURT, ATTINGAL

Exhibit P9 TRUE COPY OF IA 1/2022 IN O.S. 224/2012 ON THE FILE OF THE MUNSIFF COURT, ATTINGAL, DATED 2.9.2022

Exhibit P10 TRUE COPY OF THE COMMISSION REPORT (ALONG WITH SURVEY PLAN) FILED BY ADV.

K.L. SAJAN, DATED 13.2.2024 ON THE FILE OF THE MUNSIFF COURT, ATTINGAL

Exhibit P11 TRUE COPY OF THE OBJECTION TO THE COMMISSION REPORT FILED BY THE PLAINTIFFS IN O.S. 224/2012, DATED NIL

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Exhibit P12 TRUE COPY OF THE COMMISSION APPLICATION, I.A. NO. 3/2024 FILED BY THE PLAINTIFFS IN O.S. 224/2012 ON THE FILE OF THE MUNSIFF COURT, ATTINGAL, DATED 08.08.2024

Exhibit P13 TRUE COPY OF THE OBJECTION FILED BY THE DEFENDANT TO IA. 3/2024 IN O.S. 224/2012 ON THE FILE OF THE MUNSIFF COURT, ATTINGAL, DATED 16.08.2024

Exhibit P14 TRUE COPY OF THE APPLICATION, I.A. NO.

5/2024 FILED BY THE PLAINTIFFS TO REMOVE THE CASE FROM THE LIST, IN O.S. 224/2012 ON THE FILE OF THE MUNSIFF COURT, ATTINGAL, DATED, 08.08.2024

Exhibit P16 TRUE COPY OF THE ORDER IN I.A. 3/2024 ON THE FILE OF THE MUNSIFF COURT, ATTINGAL, DATED 29.08.2024