Kerala High Court
Kangodankandy Pathu Umma vs Mutharikkandi Leela Amma on 17 January, 2025
Author: K.Babu
Bench: K. Babu
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O.P (C) No.485 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 17TH DAY OF JANUARY 2025 / 27TH POUSHA, 1946
OP(C) NO. 485 OF 2020
AGAINST THE ORDER DATED 11.02.2020 IN IA NO.1/2020 IN OS
NO.89 OF 2011 OF MUNSIFF MAGISTRATE COURT, PERAMBARA
PETITIONER/PETITIONER IN I.A/PLAINTIFF IN O.S:
KANGODANKANDY PATHU UMMA,
AGED 94 YEARS,
W/O.KUTTYMAMMI, PUTHANPURAYIL @ KUMBRAMADATHIL,
P.O.CHANGAROTH, CHANGAROTH AMSOM, DESOM,
KOYILANDY TALUK, KOZHIKODE-673525
BY ADVS.
B.KRISHNAN
SRI.R.PARTHASARATHY
RESPONDENTS/RESPONDENTS IN I.A/DEFENDANTS 1,3 TO 5 IN O.S:
1 MUTHARIKKANDI LEELA AMMA,
W/O.BALAN NAIR, CHANGAROTH AMSOM, DESOM,
KOYILANDY TALUK, KOZHIKODE-673525
2 MUTHARIKKANDY SURESH
CHANGAROTH AMSOM, DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT-673525
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O.P (C) No.485 of 2020
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3 PULLAKKUNNATH MOOSA,
THOTTATHIL, CHANGAROTH AMSOM,
KADIYANGAD DESOM,
KOYILANDY TALUK, KOZHIKODE-673525
4 EZHUTHUPALLIPARAMBIL KUNHAMMED,
NARIKKALAKKANDY, CHANGAROTH AMSOM, DESOM,
KOYILANDY TALUK, KOZHIKODE-673525
BY ADVS.
SRI.SATHYAN P. THAMPY
SMT.K.LASITHA
SHIBI.K.P KALARIKKAL PURUSHAN
C.K.SUNIL(K/72/2011)
PRADEEP T.C.(K/414/2020)
VIDYA K.G.(K/534/2014)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
17.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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O.P (C) No.485 of 2020
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K.BABU, J.
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O.P (C) No.485 of 2020
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Dated this the 17th day of January, 2025
JUDGMENT
The challenge in this Original Petition is to the order dated
11.12.2020 in I.A No.1/2020 in O.S No.89/2011 on the file of the
Munsiff-Magistrate Court, Perambra (Ext.P1).
2. The petitioner is the plaintiff in the suit. The Original Suit is
for a permanent prohibitory injunction restraining the defendants
from trespassing into the plaint schedule property and committing
waste thereon. The Commissioner appointed by the Trial Court
prepared Exts.C3 report and C4 plan. The plaintiff filed an objection
to Exts.C3 report and C4 plan and filed I.A No.874/2018 to remit the
report and plan. The Court rejected the application granting liberty
to the plaintiff to examine the Commissioner during the trial. The
Court proceeded with the trial. The plaintiff filed I.A No.1/2020 to
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examine the Advocate Commissioner. The learned Munsiff
dismissed the application holding that the application is highly
belated.
3. I have heard the learned counsel for the petitioner and the
learned counsel for the respondents.
4. The learned counsel for the petitioner submitted that the
learned counsel appearing for the plaintiff in the Trial Court omitted
to file the application in time. The learned counsel for the
respondents submitted that the attempt of the plaintiff is to prolong
the matter.
5. Having regard to the nature of the reliefs sought for, this
Court is of the view that the plaintiff be given an opportunity to
examine the Advocate Commissioner. The Trial Court shall issue
summons to the Commissioner to appear for giving evidence on
05.02.2025. Both sides shall participated in the trial on that day to
complete the proceedings on the same day itself and the Trial Court
shall dispose of the matter within one month from the date
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scheduled for the examination of the Commissioner. The Trial
Court shall post the matter on 22.01.2025 for considering the
request for issuing summons to the witness.
The Original Petition (Civil) stands allowed as above.
Sd/-
K.BABU,
JUDGE
KAS
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PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER IN IA 1/2020 IN
O.S.89/2011 ON THE FILE OF THE MUNSIFF
COURT, PERAMBRA DATED 11.2.2020
EXHIBIT P2 TRUE COPY OF THE COMMISSIONER'S REPORT
DATED 13.11.2018
EXHIBIT P3 TRUE COPY OF THE DRAWING SUBMITTED BY
COMMISSIONER
EXHIBIT P4 TRUE COPY OF THE DEED DATED 4.1.1988
CONVEYED BY 1ST DEFENDANT TO
PLAINTIFF'S HUSBAND
EXHIBIT P5 TRUE COPY OF THE DEED SHOWING
ANTECEDENT TITLE OF 1ST DEFENDANT DATED
2.2.1956
EXHIBIT P6 TRUE COPY OF THE TITLE DEED OF
PLAINTIFF'S HUSBAND DATED 18.7.1958
EXHIBIT P7 TRUE COPY OF THE TILE DEED DATED
16.6.2009 SHOWING TRANSFER OF SECTION
OF PROPERTY TO DEFENDANTS 4 AND 5
EXHIBIT P8 TRUE COPY OF THE COURT ORDER IN IA
874/2018 IN O.S 89/2011 MUNSIFF
COURT,PERAMBRA, RESERVING RIGHT IN THE
PLAINTIFF TO EXAMINE THE COMMISSIONER
BY ORDER IN A PETITION TO REMIT THE
COMMISSION REPORT DATED 15.1.2019
EXHIBIT P9 TRUE COPY OF PLAINT IN OS 89/2011 DATED
30.5.2011
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EXHIBIT P10 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY DEFENDANTS 1 TO 3 DATED
13.2.2012
