Remanded

Cherukavu Land Development v. Ahammedkutty Haji

Kerala HC18 Nov 2009WP(C)/6807/2009

Case brief

AI extract

What is this about?

A writ petition challenging an order of the Munsiff Court declining the petitioner/plaintiff's request to set aside the advocate commissioner's report and plan in a suit for injunction. The High Court did not examine the merits of the objections but directed the lower court to consider them at the trial.

What did the court decide?

Directing the court below to consider the petitioner's objections to the commission report and plan at the trial stage by calling the commissioner and surveyor for evidence.

Cherukavu Land Development Vs Ahammedkutty Haji — Property and Title | Kerala HC (2009)

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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 S.S.SATHEESACHANDRAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931

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WP(C).No. 6807 of 2009(O) ------------------------I.A.NO.151/2009 IN OS.246/2006 of M.C.,PARAPPANANGADI ....................

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PETITIONER(S): ------------------------

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CHERUKAVU LAND DEVELOPMENT PVT.LTD., REPRESENTED BY DIRECTOR C.P.KUNHIMUHAMMAD, S/O.M.K.C.ABU HAJI,AGED 55,KASABA AMSOM, MAVOOR ROAD,KOZHIKODE P.O.

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BY ADVS. MR.HARISH R. MENON, MR.K.T.SHYAMKUMAR.

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RESPONDENT(S): ---------------------------

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AHAMMEDKUTTY HAJI,S/O.MANGHATTU PARAMBAN KOTTEKKATTU MUHAMMAD HAJI,RESIDING AT MANGHATTU PARAMBAN KOTTEKKATU, P.O.VAZHAYOOR,ERANAD TALUK.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.6807/2009 O

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COPY OF THE REPORT SUBMITTED BY THE COMMISSIONER DTD. 15/11/2008.

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P2: COPY OF THE PLAN SUBMITTED BY THE COMMISSIONER DTD.15/11/2008.

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P3: COPY OF AFFIDAVIT IN I.A.NO.151/2009 FILED BY THE COUNSEL.

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P4: COPY OF AFFIDAVIT IN I.A.NO.152/2009 FILED BY THE COUNSEL.

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P5: COPY OF THE MEMO FILED BY THE COUNSEL.

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P6: COPY OF THE ORDER DTD. 07/02/2009 IN I.A.NO.151/2009.

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RESPONDENT'S EXHIBITS:

N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

S.S.SATHEESACHANDRAN, J.

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W.P.(C).No.6807 of 2009 - O

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Dated this the 18^th day of November, 2009

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J U D G M E N T

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Petitioner is the plaintiff in O.S.No.246 of 2006 on the file of the Munsiff Court, Parappanangadi. Suit is one for injunction and the respondent is the defendant. Respondent filed written statement resisting the suit claim in which among other contentions the identity of the suit property was also disputed. At the instance of the plaintiff an advocate commissioner conducted local inspection, measured out the property with the assistance of a surveyor and filed report and plan. Previously two reports had also been filed by the commissioner, but, one of them filed with a rough sketch alone. Plaintiff had some serious objections to the survey measurements and identification made and also a grievance that some points sought to be ascertained were not considered by the advocate commissioner while filing the report and plan. Petitioner/plaintiff thereafter moved an application for setting aside the report and plan raising objections to the report and setting it aside. Learned Munsiff after hearing

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W.P.(C).No.6807 of 2009 - O

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both sides declined the request of the petitioner/plaintiff vide Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

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I heard the counsel for the petitioner.

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Having regard to the submissions made and taking note of the facts and circumstances presented, I find it is not proper and appropriate for this Court to examine the merit of the objections canvassed by the petitioner/plaintiff to the commission report which had been declined by the court below vide Ext.P6 order. It is seen from Ext.P6 order that the court below declined the request of the petitioner/plaintiff for the reason that the case has been included among the targeted cases for disposal. Another reason that weighed with the court, it appears, was that three commission reports had already been collected in the case. The learned counsel for the petitioner submits that the present

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report was the only one prepared after carrying out the survey measurements, and the previous one is grossly insufficient to identify the plaint property, which is disputed by the defendants.

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W.P.(C).No.6807 of 2009 - O

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I do find some force in the submission made by the counsel for the petitioner that the reason set out in Ext.P6 order for nonconsidering the objections raised by the petitioner/plaintiff to the commission report is not correct. There will be a direction to the court below to consider the objections raised by the plaintiff to the commission report and plan at the trial in case the petitioner/plaintiff take steps for examining the commissioner and also the surveyor to substantiate the objections. In the event of the objections being found sustainable after taking evidence, needless to point out the court has to pass appropriate orders for remitting the report or seeking further clarification from the commissioner as the case may be. In having such an enquiry at trial none of the observations made in Ext.P6 order will have any bearing. Reserving the right of the petitioner to canvass the challenges made in the objections at the trial stage, the writ petition is closed.

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S.S.SATHEESACHANDRAN, JUDGE.

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bkn/-

Cherukavu Land Development v. Ahammedkutty Haji

Case brief

What is this about?

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Cherukavu Land Development v. Ahammedkutty Haji

Case brief

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What did the court decide?

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