Allowed

Abdul Rasak v. Arumughan

Kerala HC26 Jul 2012OP(C)/535/2011

Case brief

AI extract

What is this about?

The court allowed an original petition challenging an order dismissing an application for remission of a survey report. The High Court set aside the lower court's order because the Village Assistant who prepared the survey plan was not examined, only his countersignatory. The application was remitted to the trial court for fresh decision, with the option to examine the Assistant during the trial.

What did the court decide?

Exhibit P4 order dated 04.12.2010 set aside; I.A. No.2418 of 2010 remitted to the trial court for fresh decision.

Abdul Rasak Vs Arumughan — Property and Title | Kerala HC (2012)

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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 THOMAS P.JOSEPH

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THURSDAY, THE 26TH DAY OF JULY 2012/4TH SRAVANA 1934

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OP(C).NO. 535 OF 2011 (O)

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OS.217/2004 OF PRL.MUNSIFF COURT, PALAKKAD

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PETITIONER:

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ABDUL RASAK, S/O. ABDUL KAREEM RAWTHER, RESIDING AT MIMOON MANZIL, ATHIRA NAGAR, KORKANNI KALLEKKULANGARA, AKATHETHARA, AMSOM PALAKKAD TALUK, PIN - 678009.

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SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP

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RESPONDENT(S):

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ARUMUGHAN, S/O. KUPPAN, REISIDING AT ATHIRA NAGAR, KORKANNI, KALLEKKULANGARA AKATHETHAR AMSOM, PALAKKAD DISTRICT PIN-678009.

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BY ADV. SRI.SAJAN VARGHEESE K. BY ADV. SRI.LIJU. M.P

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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(O.P(C) NO.535 OF 2011)

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PETITIONER(S)' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 12.8.2010.

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EXHIBIT P2 TRUE COPY OF THE SKETCH DATED 12.8.2010. EXHIBIT P3 TRUE COPY OF I.A. NO.2418 OF 2010 IN O.S. NO.217 OF 2004 DATED 9.9.2010.

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EXHIBIT P4 TRUE COPY OF THE ORDER IN I.A. NO.2418 OF 2010 IN O.S. NO.217 OF 2004 ON THE FILE OF THE COURT OF MUNSIFF (PRINCIPAL) OF PALAKKAD DATED 4.12.2010.

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RESPONDENT(S)' EXHIBITS:

NIL

TRUE COPY

P.S. TO JUDGE

THOMAS P.JOSEPH, J.

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==================================== O.P(C) No.535 of 2011

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==================================== Dated this the 26^th day of July, 2012

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J U D G M E N T

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Exhibit P4, order passed by the learned Principal Munsiff, Palakkad on I.A. No.2418 of 2010 in O.S. No.217 of 2004 is under challenge.

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Petitioner sued the respondent for a decree for prohibitory and mandatory injunction. The case of petitioner is that plaint B schedule pathway originating from the canal bund road on the extreme east passes through the southern side of the property of respondent and reaches the plaint A schedule belonging to the petitioner which according to the petitioner is his only means of access to the plaint A schedule. It is the further case of the petitioner that the respondent trespassed into the plaint B schedule road and constructed a fence.

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Respondent denied existence of any such road on the southern side of his property.

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I am told that the Advocate Commissioner inspected the property thrice and submitted reports and sketches but all were remitted for one reason or the other. Ultimately as per order on I.A. No.1515 of 2009 the learned Munsiff directed the Advocate

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O.P(C) No.535 of 2011

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-: 2 :-

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Commissioner to measure the property of the respondent with respect to his documents as well. Pursuant to that order, the Advocate Commissioner after inspection submitted report and plan.

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Petitioner was not satisfied with that report and plan as well and filed I.A. No.2418 of 2010 to remit the same. Main grievance of the petitioner is that though the order on I.A. No.2418 of 2010 directed the Advocate Commissioner to measure the property of the respondent with respect to his documents of title, no attempt was made in that way.

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On I.A. No.2418 of 2010 the Advocate Commissioner

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and Surveyor were examined as C.Ws1 and 2. The learned Munsiff based on the evidence of C.Ws1 and 2 dismissed I.A. No.2418 of 2010. Hence this Original Petition.

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The learned counsel for the petitioner has argued that in view of the contention that the respondent trespassed into plaint B schedule way, it was highly necessary that property of the respondent was measured with reference to his documents of title but that was not done.

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The learned counsel for the respondent contended that even the earlier reports would show that there was no

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O.P(C) No.535 of 2011

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-: 3 :-

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such way along the southern side of property of the respondent. It is pointed out that the documents of the respondent were also made use of for measurement of the property.

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I am given a copy of deposition of C.Ws1 and 2, the Advocate Commissioner and Village Officer. It is seen from the deposition of C.W.2, the Village Officer that it was not he who measured the property but the Village Assistant who (allegedly) measured the property and prepared the plan. C.W.2 has only counter signed the plan prepared by the Village Assistant. In the above circumstances it was appropriate for a proper decision on I.A. No.2418 of 2010 that the Village Assistant who prepared the plan was examined. In that view of the matter Ext.P4, order on I.A. No.2148 of 2010 is liable to be set aside.

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Then the question is whether the exercise of examining the Village Assistant who prepared the plan (Ext.C1(a) could be done in the course of the trial or there should be a separate enquiry on I.A. No.2418 of 2010 alone.

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Having heard the learned counsel on both sides I am inclined to think that I.A. No.2418 of 2010 could be disposed of along with the suit itself.

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O.P(C) No.535 of 2011

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-: 4 :-

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Resultantly, the Original Petition is allowed as under:

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(i) Exhibit P4, order dated 04.12.2010 on I.A. No.2418 of 2010 in O.S. No.217 of 2004 of the court of learned Principal Munsiff, Palakkad is set aside.

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(ii) I.A. No.2418 of 2010 is remitted to the

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trial court for fresh decision.

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(iii) It is made clear that it is open to the learned Munsiff either to examine the Village Assistant who prepared the plan (Ext.C1(a) also and record other evidence if any and dispose of I.A. No.2418 of 2010 or post I.A. No.2418 of 2010 along with the suit so that in the course of trial, it is open to the petitioner to examine the Village Assistant also and challenge the report and plan.

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(iv) If on such examination in the course of the trial it is revealed that there is no measurement/proper measurement of the property

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O.P(C) No.535 of 2011

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-: 5 :-

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belonging to the respondent as prayed for by the petitioner, it will be open to the learned Munsiff to pass necessary orders on I.A. No.2418 of 2010 including remission of Exts.C1 and C1(a) (as prayed for in I.A. No.2418 of 2010) and call for fresh report and plan.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Abdul Rasak v. Arumughan

Case brief

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Abdul Rasak v. Arumughan

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