Allowed

Xavier and Others v. Varkey

Kerala HC23 Jun 2008WP(C)/3744/2008

Case brief

AI extract

What is this about?

High Court of Kerala, in a writ petition under Article 227, quashed the Munsiff Court order dismissing an application to remit a commission report. The court directed the Munsiff to remit the report to clarify discrepancies regarding the width of the way between two conflicting survey reports. The Court held that despite delay, the application should have been entertained to resolve the substantia

What did the court decide?

Writ petition allowed; order dated 24/01/2008 in IA No. 171/08 quashed; IA No. 170/08 allowed; Munsiff directed to remit report to Commissioner.

Xavier and Others Vs Varkey — Property and Title | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930

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WP(C).No. 3744 of 2008(U)

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------------------------AGAINST THE ORDER DATED 24/01/2008 IN IA.171/08,IA.169/08 AND 170/08 IN OS.644/1999 of MUNSIFF COURT,ALUVA

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PETITIONERS:PETITIONERS:

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--------------------------------------------1. XAVIER, S/O.KOCHU POULO, AGED 50 YEARS, POOVELI VEETTIL, MATTOOR VILLAGE, MATTOOR KARA.

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2. SATHYAVRATHAN, S/O.KRISHNAN KUTTY, AGED 62 YEARS, ARAVALLI HOUSE, MATTOOR VILLAGE, MATTOOR KARA.

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3. RAMANI, W/O.SURENDRAN, AGED 45 YEARS, KOZHIKKOTTU HOUSE, MATTOOR VILLAGE, MATTOOR KARA.

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4. SURAJ LAL, S/O.SURENDRAN, AGED 27 YEARS, KOZHIKKOTTU HOUSE, MATTOOR VILLAGE, MATTOOR KARA.

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5. SOORYA LAL, S/O.SURENDRAN, AGED 27 YEARS, KOZHIKKOTTU HOUSE, MATTOOR VILLAGE, MATTOOR KARA.

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BY ADV. SRI.SHAJI P.CHALY

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RESPONDENT:

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-------------------------

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VARKEY, S/O.KURIAN, AGED ABOUT 61 YEARS, KAKKASSERY HOUSE, MATTOOR VILLAGE, MATTOOR KARA.

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BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) - R1

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.3744/2008 U

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1: EXT.P2:	COPY OF THE PLAINT FILED BY THE PETITIONERS. COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT.
EXT.P3:	COPY OF THE COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER.
EXT.P4:	COPY OF THE SURVEY REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER.
EXT.P5:	COPY OF THE OBJECTION TO THE SURVEY COMMISSION REPORT FILED BY THE PETITIONERS.
EXT.P6:	COPY OF THE I.A.2456/07 IN O.S.644/99 FILED BY THE RESPONDENT.
EXT.P7:	COPY OF THE OBJECTION TO I.A.2456/07 FILED BY THE PETITIONERS.
EXT.P8:	COPY OF THE I.A.171/08 IN O.S.644/99 FILED BY THE PETITIONER.
EXT.P9:	COPY OF THE I.A.169/08IN O.S.644/99 FILED BY THE PETITIONER.
EXT.P10:	COPY OF THE I.A.170/08 IN O.S.644/99 FILED BY THE PETITIONER.
EXT.P11:	COPY OF THE OBJECTION TO THE I.A.171/08 FILED BY THE RESPONDENT.
EXT.P12:	COPY OF THE OBJECTION TO THE I.A.169/08 FILED BY THE RESPONDENT.
EXT.P13:	COPY OF THE OBJECTION TO THE I.A.170/08 FILED BY THE RESPONDENT.
EXT.P14:	COPY OF THE ORDER IN I.A.171/08 PASSED BY THE LEARNED MUNSIFF COURT, ALUVA DTD. 24/01/08.
EXT.P15:	COPY OF THE ORDER IN I.A.169/08 PASSED BY THE LEARNED MUNSIFF COURT, ALUVA DTD. 24/01/08
EXT.P16:	COPY OF THE ORDER IN I.A.170/08 PASSED BY THE LEARNED MUNSIFF COURT, ALUVA DTD. 24/01/08.
EXT.P17:	COPY OF THE PLAINT IN O.S.518/05 FILED BY THE RESPONDENT.
EXT.P18:	COPY OF THE WRITTEN STATEMENT IN O.S.518/05 FILED BY THE PETITIONERS.
	/TRUE COPY/
Kss	P.A.TO JUDGE

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M.SASIDHARAN NAMBIAR, J.

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W.P.(C) No. 3744 of 2008

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Dated this the 23^rd June, 2008.

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J U D G M E N T

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Petitioners are plaintiffs in O.S.No.644 of 1999, on the file of Munsiff Court, Aluva. The suit is one for injunction in respect of the right of way claimed over plaint 'E' schedule property. A commission was appointed. Commissioner originally submitted Ext.P3 report along with a sketch, wherein plaint 'E' schedule property was demarcated having a width of 9.9 feet, 8.6 feet and 9 feet at different parts of the way. Subsequently, a survey commission was taken and the same Commissioner submitted Ext.P4 report along with a survey

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plan. In Ext.P4 report, Commissioner has shown the width of the way as 3.2 meters on the northern end and 2.1 meters on the southern end. Petitioners did not file objection to the report in time. When the suit was included in the list, petitioners filed Ext.P8 petition to remit the report. An objection was also filed by the respondent. Under Ext.P14 order, the petition was dismissed. It is challenged in this petition filed under Article 227 of the Constitution of India.

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W.P.(C) No.3744/2008

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The learned counsel appearing for the petitioners and learned counsel appearing for respondent were heard.

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The learned counsel appearing for the petitioners pointed out that the very same Commissioner has earlier inspected the property, measured plaint 'E' schedule property and reported the width of the way, which is more than the width subsequently reported in Ext.P4 report and though petition filed to remit the report was belated, in the interest of justice, learned Munsiff should have allowed the application. It was also pointed out that even in the original written statement, respondent admitted that the width of the plaint 'E' schedule property is eight feet and because of Ext.P4 report, that admission was taken away by filing an application under Rule 17 of Order VI of Code of Civil Procedure, and taking advantage of the mistake in Ext.P4 report, respondent has instituted O.S.No.518 of 2005, claiming that width of the way is only 8 links and in such circumstances, for an effective decree to be passed in the suit, learned Munsiff should have allowed the application.

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The learned counsel appearing for the respondent argued that though Commissioner has originally given the width of the way in Ext.P3 report, at the time of survey commission, the width of

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W.P.(C) No.3744/2008

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the way was properly measured and it was found that width originally reported in Ext.P3 is not correct, and in such circumstances, there is no necessity to remit the report back to the commissioner. The learned counsel also argued that though Ext.P4 report was filed on November, 2004, petition to remit the report was filed only in 2008, when the suit was listed, and in such circumstances, learned Munsiff was justified in not remitting the report. It was also argued that written statement was also amended based on Ext.P4 report and that order was not challenged.

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True, there was a delay in filing the application to

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remit the report. But for that reason alone, learned Munsiff should not have dismissed the application, without considering the question whether any clarification is necessary to Ext.P4 report in the light of discrepancy in Exts.P3 and P4 reports. Ext.P3 report shows that when the Commissioner measured the width of plaint 'E' schedule property, it was having a width of 8.6 to 9.9 feet. In Ext.P4 report, the width is reported as 2.1 meters to 3.2 meters. In such circumstances, Munsiff should have remitted the report, as sought for, to file a further report, taking into consideration the objections filed by the petitioners, so that discrepancy, if any, could have been clarified by the Commissioner.

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W.P.(C) No.3744/2008

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In such circumstances, Ext.P14 order is quashed. I.A.No.170/2008 stands allowed. Munsiff is directed to remit the report back to the Commissioner to submit a further report, at the expense of the petitioners, taking into consideration, the objections raised by the petitioners, clarifying the discrepancy with regard to the width of the plaint 'E' schedule property, in Exts.P3 and P4 reports. The Munsiff to expedite the trial.

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The writ petition is disposed as above.

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M.SASIDHARAN NAMBIAR,

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JUDGE

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nj.

Xavier and Others v. Varkey

Case brief

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Xavier and Others v. Varkey

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