Kerala High Court
Soman vs Sathiamoorthy on 11 February, 2025
Author: K.Babu
Bench: K. Babu
OP(C) No.1473 of 2017
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2025:KER:11325
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
OP(C) NO. 1473 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 15.03.2017 IN OS
NO.323 OF 2013 OF MUNSIFF COURT, VADAKKANCHERRY
PETITIONER/S:
SOMAN
S/O KUNNARTHULLY SANKARA PANICKER,ROSE GARDEN,
PERINGAVU VILLAGE/DESOM,THRISSUR TALUK, THRISSUR
DISTRICT.
BY ADVS.
SRI.SANTHEEP ANKARATH
SRI.ARUN MATHEW VADAKKAN
RESPONDENT/S:
1 SATHIAMOORTHY
S/O KAUNNATHULLY SANKARA PANICKER,KUMARANELLUR
VILLAGE, OTTUPARA DESOM,TALAPPILLY TALUK,
THRISSUR DIST. PIN. 680582.
2 SIDHARTHAN
OP(C) No.1473 of 2017
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S/O KUNANTHULLY SANKARA PANICKER,KUMARANELLU
VILLAGE, OTTUPARA DESOM,TALAPPILLY TALUK,
THRISSUR DIST.PIN.680582.
BY ADV SRI.G.SREEKUMAR (CHELUR)
SAJITHAKUMAR KANGHUNHAT
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
11.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) No.1473 of 2017
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K.BABU, J.
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O.P.(C).No.1473 of 2017
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Dated this the 11th day of February, 2025
ORDER
The challenge in this Original Petition is to Ext.P7
order dated 15.03.2017 in I.A.No.2187/2016 in
O.S.No.323/2013. The petitioner is defendant No.2 in the
original suit. The plaintiff and defendant No.1 are the
respondents.
2. The plaintiff instituted the Original Suit for
permanent prohibitory injunction. He pleaded that plaint
A schedule property belonged to him. It is alleged that
when he attempted to construct barbed wire fencing on
the eastern and northern boundaries of the plaint
schedule property, defendant No.2 made obstructions.
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3. Defendant No.1 resisted the suit by filing a
written statement along with a counter claim. He prayed
for fixation of boundaries separating his property from
the property of the plaintiff. The Court issued a
Commission. An Advocate Commissioner and a Surveyor
visited the property and prepared report and plan.
4. Defendant No.2 challenged the report of the
Commissioner and sought remittal of the same on the
following grounds:--
(1)The surveyor has not measured the properties as
per Survey Plan and Field Books.
(2)The Surveyor has not measured the property as
per an agreement of the year 1998.
(3) The identification of the plaint properties and
counter claim schedule properties based on the
title deeds of the parties is not sufficient.
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(4) The entire property having an extent of 3.19
acres of land originally belonged to the
predecessor-in-interest of the parties is to be
identified.
5. The plaintiff resisted the application seeking
remittal of the commission report.
6. The trial Court considered the contentions
raised by the petitioner. The trial Court held that the
allegation that the surveyor has not measured the
property based on the relevant Survey Plan and Field
Books is very vague. The Court below relied on the
recitals in the Commission Report that he has measured
the property as per survey plan. The Court below also
noted that the Surveyor has shown the northern and
western boundaries based on the re-survey plan.
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7. Yet another contention of the petitioner was
that the agreement executed in respect of a common way
was not taken into account by the Commissioner while
identifying the property. The trial Court observed that
the parties claimed their right over the property based on
their title deeds prior to the alleged execution of the
agreement of the year 1998, and the Court came to the
conclusion that the identification of the plaint schedule
properties and counter claim schedule properties based
on the title deeds of the parties is sufficient for a just
decision in view of the nature of the disputes raised by
the parties.
8. The trial Court has specifically adverted to the
report of the Commissioner and concluded that the
Surveyor has measured the property based on the title
deeds, re-survey plan and other Revenue records.
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9. The Court below further held that the
identification of the total extent of land [3.19 acres] that
belonged to the predecessor-in-interest of the parties is
not at all required in a suit for fixation of boundaries.
10. I have gone through the impugned order. I
failed to find any sufficient materials warranting
interference of this Court under Article 227 of the
Constitution of India. However, the petitioner is at liberty
to raise all the contentions during the trial. The Courts
below will have the liberty to remit the commission
report, if it is found necessary during the course of trial.
The Original Petition is disposed of accordingly.
Sd/-
K.BABU,
JUDGE
kkj
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APPENDIX OF OP(C) 1473/2017
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF PLAINT DATED 11.4.2013 IN
O.S NO. 323/2013 ON THE FILE OF THE
MUNSIFF'S COURT, WADAKKANCHERY.
EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT AND
COUNTER CLAIM DATED 12.7.2013 FILED BY
THE 1ST DEFENDANT IN O.S NO. 323/2013
ON THE FILE OF THE MUNSIFF'S COURT,
WADAKKANCHERRY.
EXHIBIT P3 TRUE COPY OF THE COMMISSIONER'S REPORT
AND SKETCH APPENDED TO THE REPORT AND
DATED 2.8.2015 IN I.A NO. 3547/2014 IN
O.S NO. 323/2013 ON THE FILE OF THE
MUSNIFF'S COURT, WADAKKENCHERRY.
EXHIBIT P4 TRUE COPY OF I.A NO.2187/2016 DATED
25.8.2016 FILED BY THE PETITIONER
HEREIN IN O.S NO. 323/2013 BEFORE THE
MUNSIFF'S COURT, WADAKKANCHERRY.
EXHIBIT P5 TRUE COPY OF OBJECTION DATED 25.8.2016
FILED BY THE PETITIONER TO EXT.P3
COMMISSION REPORT.
EXHIBIT P6 TRUE COPY OF THE COUNTER DATED
5.10.2016 TO EXT. P4 FILED BY THE 1ST
RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 15.3.2017
IN I.A NO. 2187/2016 IN O.S NO.
323/2013 ON THE FILE OF THE MUNSIFF'S
COURT, WADAKKANCHERY
