Remanded

Venu v. Mouveel Ayisha

Kerala HC18 Mar 2013OP(C)/716/2012

Case brief

AI extract

What is this about?

The Court allowed a petition under Article 227 to set aside an order rejecting an application to quash a Commissioner's report. The High Court remitted the matter to the trial court for reconsideration as identification of the property was not made based on the relevant assignment order and sale deed.

What did the court decide?

Impugned order set aside; I.A. remitted to trial court for reconsideration after further examination of Commissioner.

Venu Vs Mouveel Ayisha — Property and Title | Kerala HC (2013)

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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 A.V.RAMAKRISHNA PILLAI

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MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934

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OP(C).No. 716 of 2012 (O)

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-------------------------(AGAINST THE ORDER/JUDGMENT IN I.A.NO.2011/2011 IN OS.403/2009 OF THE MUNSIFF COURT, HOSDRUG)

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PETITIONER(S):

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1. VENU, AGED 37 YEARS,

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S/O. VELLACHI, RESIDING AT PARAMBA,

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PALLAM HOUSE, P.O. THEKKI, KASARAGOD TALUK.

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2. KRISHNAN, AGED 52 YEARS,

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S/O. AMBU, RESIDING AT PARAMBA, PALLAM HOUSE,

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P.O. THEKKI, KASARAGOD TALUK.

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3. NARAYANAN, AGED 42 YEARS, S/O. CHATHU, RESIDING AT PARAMBA, PALLAM HOUSE, P.O. THEKKI, KASARAGOD TALUK.

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4. RAMANI, AGED 32 YEARS, D/O. CHATHU, RESIDING AT PARAMBA, PALLAM HOUSE, P.O. THEKKI, KASARAGOD TALUK.

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5. VIMALA, AGED 37 YEARS, D/O. KUNHIRAMAN, RESIDING AT PARAMBA, PALLAM HOUSE, P.O. THEKKI, KASARAGOD TALUK.

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BY ADV. SRI.SURESH KUMAR KODOTH.

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RESPONDENT(S):

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1. MOUVEEL AYISHA, AGED 50 YEARS, D/O. T.ABDULLA, RESIDING AT BEKAL HOUSE, THAYAL, PALLIKKARA VILLAGE, HOSDURG TALUK - 671 316.

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2. T. ALEEMA, AGED 40 YEARS, D/O. T. ABDULLA, RESIDING AT BEKAL HOUSE, THAYAL, PALLIKKARA VILLAGE, HOSDURG TALUK - 671 316.

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3. T. HAMEED, AGED 45 YEARS, S/O. T. ABDULLA, RESIDING AT BEKAL HOUSE, THAYAL, PALLIKKARA VILLAGE, HOSDURG TALUK - 671 316.

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OP(C).No. 716 of 2012 (O)

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-:2:-

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4. ABBAS, AGED 50 YEARS, S/O.T. ABDULLA, RESIDING AT BEKAL HOUSE, THAYAL, PALLIKKARA VILLAGE, HOSDURG TALUK - 671 316.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 716 of 2012 (O)

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APPENDIX

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PETITIONERS' EXHIBITS:-

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P1:- COPY OF THE PLAINT IN O.S.NO.403/2009 ON THE FILE OF THE MUNSIFF COURT, HOSDURG.

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P2:- COPY OF THE WRITTEN STATEMENT IN I.S.NO.403/2009. P3:- COPY OF THE REPORT 22/8/2011 SUBMITTED BY THE ADVOCATE COMMISSIONER. P4:- COPY OF THE PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER.

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P5:- COPY OF THE PETITION IN I.A.NO.2011/2011 IN O.SNO.403/2009.

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P6:- COPY OF THE ORDER DATED 14.12.2011 IN I.A.NO.2011/2011 IN O.S.403/2009.

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RESPONDENTS' EXHIBITS:NIL

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//TRUE COPY// P.A. TO JUDGE

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A.V.RAMAKRISHNA PILLAI, J.

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O.P(C) No.716 of 2012

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----------------------------------------------------Dated this the 18^th day of March, 2013

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JUDGMENT

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The defendants in the original suit are the petitioners.

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The respondents filed the suit for recovery of plaint 'A' schedule property on the allegation that the property belongs to them by virtue of a final decree passed in O.S.No.310 of 1997 of Munsiff Court, Hosdurg. According to them, originally the property was a Government land, which was assigned to one Vasudevan as per L.A.No.34/1979. The respondent's brother Abdulla purchased it from the aforesaid assignee as per a registered sale deed of 1982. After the death of Abdulla, his rights devolved upon the legal heirs, including the respondents and they were allotted the property as per decree in O.S.No.310/1997; it was alleged. Their further case was that when the Amin went to the property to effect delivery, it was found that the petitioners by committing trespass on 10.12.2007 occupied the land.

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The petitioners herein filed written statement resisting the prayer denying the averments. They further contended that they, being landless

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OP(C).716/12 -:2:-

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poor, are in residential occupation of a small extent of Government land, since 1992 and the land, where they are in occupation, are still assignable Government land and their application for assignment is pending consideration. They also contended that the descriptions of the suit property are incorrect.

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Thereafter, the Commissioner, who identified and measured the the property at the instance of the respondents submitted a report and plan. The petitioners contended that the identification made by the Commissioner was faulty, as the property was not identified with reference to the sale deed and patta issued in favour of the vendor of the respondents.

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The petitioners filed I.A.No.2011 of 2011 with a prayer to set aside the Commissioner's report and plan. The Commissioner was examined, who deposed that he has identified and measured the property with the help of a Taluk Surveyor as pointed out by the respondents and also with reference to the documents obtained from the suit file.

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According to the petitioners, the report is silent regarding the documents referred to by the Commissioner. It was pointed out that the assignment order, patta, sketch and the sale deed were neither produced

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OP(C).716/12 -:3:-

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nor the Commissioner made any attempt to identify the property with reference to those documents. However, the Court below dismissed the I.A. by the impugned order. Thus, the petitioners have come up before this Court challenging the same under Article 227 of the Constitution of India.

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Heard the learned counsel for the petitioners. Though notice was served on the respondents, they did not turn up. The impugned order was perused.

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So long as the respondents rely on the assignment order and patta which is in favour of Vasudevan, as well as the subsequent sale deed in the name of Abdulla, who is their predecessor-in-interest, the identification of the property by the Commissioner should have been on the basis of the said documents. There is absolutely nothing on record to show that the Commissioner has identified and measured out the property with the help of those documents.

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The case of the petitioners is that they are also holding certain Government lands which is assignable. So the crucial question is whether the property now in occupation of the petitioners is covered by assignment order or patta in the name of Vasudevan or the subsequent sale deed in the

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-:4:-

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OP(C).716/12

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name of Abdulla. As these factors have escaped the attention of the trial court, this Court is of view that the matter has to be remitted back to the court below to reconsider the I.A.

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In the result, the petition is allowed. The impugned order is set aside. I.A.No.2011 of 2011 in O.S.No.403 of 2009 on the file of the Munsiff Court, Hosdurg, is remitted back for reconsideration, after

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affording both sides an opportunity to examine the Commissioner further. No costs.

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sd/-

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A.V.RAMAKRISHNA PILLAI JUDGE

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krj

Venu v. Mouveel Ayisha

Case brief

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Venu v. Mouveel Ayisha

Case brief

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