Kerala High Court
Scaria Joseph vs Mathukutty Joseph on 3 November, 2025
Author: T.R. Ravi
Bench: T.R.Ravi
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OP(C) NO. 3516 OF 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 3RD DAY OF NOVEMBER 2025 / 12TH KARTHIKA, 1947
OP(C) NO. 3516 OF 2017
AGAINST THE ORDER/JUDGMENT IN OS NO.532 OF 2011 OF
ADDITIONAL MUNSIFF COURT, KOTTAYAM
PETITIONER:
SCARIA JOSEPH
S/O.JOSEPH, EAPPALLYKUNNEL, KARIMBANI P.O.,
AKALAKUNNAM VILLAGE, MUZHOOR KARA, KOTTAYAM.
BY ADV SRI.B.KRISHNA MANI
RESPONDENTS:
1 MATHUKUTTY JOSEPH
EDAPPALLYKUNNEL, KARIMBANI P.O., AKALAKUNNAM
VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT-
686564.
2 MARY THOMS
D/O.JOSEPH, ILANJIYIL VEEDU, RAMAPURAM VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT-686576.
3 ALYAMMA
D/O.JOSEPH, EDAPPALLYKUNNEL, KARIMBANI P.O.,
MOOZHUR KARA, AKALAKUNNAM VILLAGE, KOTTAYAM
TALUK, KOTTAYAM DISTRICT-686564.
4 PENNAMMA
D/O.JOSEPH, AMBAZHATHUNKAL HOUSE,
W/O.APPACHAN,ARUVITHARA P.O., ERATTUPETTA
VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT-
686122.
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5 SISTER THRESIAMMA
D/O.JOSEPH, EDAPPALLYKUNNEL, KARIMBANI
P.O.,MOOZHUR KARA, AKALAKUNNAM VILLAGE, KOTTAYAM
TALUK,KOTTAYAM DISTRICT-686564.
BY ADV SRI.P.I.GEORGEKUTTY
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
03.11.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C) NO. 3516 OF 2017
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T.R. RAVI, J.
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O.P(C). No. 3516 of 2017
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Dated this the 3rd day of November, 2025
JUDGMENT
This original petition is filed challenging Ext.P11
order whereby an application filed by the petitioner for the
appointment of an Advocate Commissioner and for
carrying out repairs and tarring the way, which has been
provided as per the compromise decree, has been rejected
by the court below. The prayer in Ext.P9 is that an
Advocate Commissioner should be appointed for the
purpose of overseeing the tarring of the pathway. The
court below has in Ext.P11 found that such a prayer cannot
be maintained as it is not provided for in the compromise
decree. The compromise decree specifically says that the
way which has been provided through the rubber trees
can be identified and marked with the help of an Advocate
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OP(C) NO. 3516 OF 2017
Commissioner.
2. The respondents have filed a counter
affidavit producing Ext.R1(a), which is a Commission
report filed in 2013 identifying the way which has been
provided in the compromise decree. It is three years
thereafter that Ext.P9 application is filed. The suit itself
was filed for declaring the right by prescription over the
way through the property of the defendants. The court held
that as long as the defendants are the owners of the way,
the nature of the way cannot be changed by tarring the
way and such an application cannot be allowed. The
counsel for the respondents has along with the counter
affidavit, also produced the plaint in a subsequent suit,
which has been filed by the petitioner for declaration that
the compromise and the identification of the way were all
fraudulent. I do not find any reason to interfere with the
order passed by the court below since it is very much in
accordance with the compromise which has been entered
into between the parties. Unless the compromise decree is
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set aside in the subsequent suit, no orders can be granted
in this original petition.
The original petition is hence dismissed without
prejudice to the claim of the petitioner in Ext.R1(c) suit
which is stated to be pending.
Sd/-
T.R.RAVI
JUDGE
LEK
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OP(C) NO. 3516 OF 2017
APPENDIX OF OP(C) 3516/2017
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT, O.S.532/2011
DATED 16-11-2011 BEFORE THE MUSNIFF'S
COURT, KOTTAYAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT WITH
A COUNTER CLAIM DATED 16-2-2012 IN
O.S.532/2011 BEFORE THE MUNSIFFS COURT,
KOTTAYAM.
EXHIBIT P3 TRUE COPY OF THE DECREE DATED 22-7-2013
IN O.S.532/2011 BEFORE THE MUNAIFF'S
COURT, KOTTAYAM.
EXHIBIT P4 TRUE COPY OF THE APPLICATION,
I.A.2537/2013 IN O.S.532/2011 BEFORE
THE MUNSIFF'S COURT, KOTTAYAM.
EXHIBIT P5 TRUE COPY OF THE APPLICATION,
I.A.3148/2013 DATED 12-12-2013 IN
O.S.532/2011 BEFORE THE MUNSIFF'S
COURT, KOTTAYAM.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 10-2-2016
IN I.A.3148/2013 IN O.S.532/2011 BEFORE
THE MUNSIFF'S COURT, KOTTAYAM.
EXHIBIT P7 TRUE COPY OF THE APPLICATION,
I.A.1771/2016 DATED 21-6-2016 IN
O.S.532/2011 BEFORE THE MUNSIFF'S
COURT, KOTTAYAM.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 1-9-2016
IN I.A.1771/2016 IN O.S.532/2011 BEFORE
THE MUNSIFF'S COURT, KOTTAYAM.
EXHIBIT P9 TRUE COPY OF THE APPLICATION,
I.A.3779/2016 DATED 17-11-2016 IN
O.S.532/2011 BEFORE THE MUNSIFF'S
COURT, KOTTAYAM.
EXHIBIT P10 TRUE COPY OF THE APPLICATION
I.A.3780/2016 DATED 17-11-2016 IN
O.S.532/2011 BEFORE THE MUNSIFF'S
COURT, KOTTAYAM.
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 19-6-2016
BEFORE THE MUNSIFF'S COURT, KOTTAYAM.
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RESPONDENT EXHIBITS
EXHIBIT R1(a) THE TRUE COPY OF THE COMMISSION REPORT
IN O.S.No.532 OF 2011 OF MUNSIFF'S
COURT, KOTTAYAM DATED 22.07.2013
EXHIBIT R1(b)
THE TRUE COPY OF THE SURVEY PLAN IN
O.S.No.532 OF 2011 OF MUNISIFF'S COURT,
KOTTAYAM
EXHIBIT R1(c) THE TRUE COPY OF THE PLAINT DATED
29.05.14 IN O.S.No.389 OF 2014 OF
MUNSIFF'S COURT, KOTTAYAM
EXHIBIT R1(d) THE TRUE COPY OF I.A.No.4006/16 IN
O.S.No.532 OF 2011 OF MUNSIFF'S COURT,
KOTTAYAM DATED 02.12.2016
EXHIBIT R1(e) THE TRUE COPY OF THE LETTER FROM
AKALAKUNNAM GRAMA PANCHAYATH DATED
28.12.2013
EXHIBIT R1(f) THE TRUE COPY OF THE WRITTEN STATEMENT
IN O.S.No.389 OF 2014 OF THE MUNSIFF
COURT, KOTTAYAM DATED 20.01.2015
