Allowed

Kunhivalappil Kunhikannan v. Kizhakkeveettil Manoharan

Kerala HC5 Feb 2013OP(C)/93/2013

Case brief

AI extract

What is this about?

The High Court set aside an order dismissing an application to appoint an Advocate Commissioner. Instead of a fresh appointment, the report and plan were remitted to the same Commissioner to identify the petitioner's property based on his title deeds. The Commissioner and Surveyor were directed to expedite the proceedings.

What did the court decide?

The order dismissing the application was set aside; the report and plan were remitted to the Advocate Commissioner to identify the petitioner's property.

Kunhivalappil Kunhikannan Vs Kizhakkeveettil Manoharan — Land Acquisition | 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 THOMAS P.JOSEPH

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TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934

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OP(C).No. 93 of 2013 (O)

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AGAINST the ORDER IN I.A.NO.1076/2011 IN O.S.NO.109/1994 OF THE MUNSIFF'S COURT, PAYYANNUR DTD 20.12.2011

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PETITIONER:

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KUNHIVALAPPIL KUNHIKANNAN AGED 44 YEARS S/O.CHANDRASEKHARAN, KANKOL AMSOM, ALAPPADAMBA DESOM TALIPARAMBA TALUK, KANNUR DISTRICT.

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BY ADV. SRI.M.V.AMARESAN

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RESPONDENTS:

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KIZHAKKEVEETTIL MANOHARAN, AGED 39 YEARS S/O.LAKSHMI AMMA, PAYYANNUR AMSOM, MAVICHERI DESOM TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 307.

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R BY ADV. SRI.ANEESH JOSEPH

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 93 of 2013

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT P1: TRUE COPY OF THE ORDER DT.20-12-2011 IN IA 2032/2011 IN OS 109/1994 OF THE MUNSIFF COURT, PAYYANNUR.
EXHIBIT P2: TRUE COPY OF THE JUDGMENT IN SA 741/00 DT.15-6-2011 PASSED BY THIS HON'BLE COURT.
EXHIBIT P3: TRUE COPY OF THE REPORT DT.10-11-2011 FILED BY THE ADVOCATE COMMISSIONER.
EXHIBIT P3(A): TRUE COPY OF THE PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER.
EXHIBIT P4: TRUE COPY OF THE AFFIDAVIT AND PETITION IN SUPPORT OF IA 2032/11 FILED BY THE PETITIONER.
EXHIBIT P5: TRUE COPY OF THE WORK MEMO GIVEN BY THE PETITIONER TO THE COMMISSIONER.
EXHIBIT P6: TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT DT.15-12-2011.
EXHIBIT P7: TRUE COPY OF THE JUDGMENT DT.11-1-2012 IN OPC 33/2012 PASSED BY THIS HON COURT.
EXHIBIT P8: TRUE COPY OF IA 1076/2012 IN OS 109/1994 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, PAYYANNUR DT. 30-7-2012.
EXHIBIT P9: TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT DT.13-9-2012 IN IA 1076/2012 IN OS 109/1994 OF THE COURT OF MUNSIFF, PAYYANNUR.
EXHIBIT P10: TRUE COPY OF ORDER IN IA 1076/2012 IN OS 109/1994 PASSED BY THE MUNSIFF COURT, PAYYANNUR DT.20-11-12.

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RESPONDENTS' EXHIBITS : NIL

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P.A to Judge

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True Copy

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THOMAS P.JOSEPH, J. =========================

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O.P(C).No.93 of 2013

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======================== Dated this the 05^th day of February, 2013

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J U D G M E N T

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Defendant in O.S.No.109 of 1994 of the Munsiff's Court,

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Payyannur is aggrieved by Ext.P10, order dismissing Ext.P8, application to appoint an Advocate Commissioner to identify property of petitioner/defendant as well.

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Respondent/plaintiff filed the suit for prohibitory injunction. He has paid court fee under Sec.27(a) of the Kerala Court Fees and Suit Valuation Act (for short, “the Act”). Petitioner contended that a portion of his property is included in the plaint schedule. Learned Munsiff framed issue regarding title claimed by the respondent/plaintiff. The suit was dismissed in favour of petitioner. Ultimately, in Ext.P2, judgment in S.A.No.741 of 2000, this Court observed that property claimed by the respondent is not properly identified and that there is nothing to show that properties of the petitioner and respondent are measured in terms of their title deeds and properly identified. The second appeal was allowed and the case was remanded for fresh decision in the light of the said observations. After remittance, the Advocate Commissioner submitted Exts.P3 and P3(a), report and plan. Petitioner claimed

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O.P(C).No.93 of 2013

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that his property is not identified though he had preferred Ext.P5, memo to the Advocate Commissioner for such purpose. That was followed by petitioner filing Ext.P4, application for remittance of Exts.P3 and P3(a). That application was dismissed by Ext.P1, order. The said order, petitioner challenged in O.P(C).No.33 of 2012. This Court disposed of the original petition as per Ext.P7, judgment with certain observations.

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Thereafter petitioner filed Ext.P8, application - I.A.No.1076 of 2012 to appoint an Advocate Commissioner to identify his property. That application was dismissed by Ext.P10, order which is under challenge.

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Learned counsel for petitioner contends that since an issue regarding title claimed by respondent is raised and court fee is paid under Sec.27(a) of the Act, the trial court has to conduct an enquiry regarding title and more particularly, in view of direction in paragraphs 21 and 22 in Ext.P2, judgment dated 15.06.2011 in S.A.No.741 of 2000. Learned counsel submits that it is without identifying property of petitioner that the Advocate Commissioner has submitted Exts.P3 and P3(a), report and plan and hence for a proper adjudication of the dispute involved, it is necessary to identify property of petitioner as well. In the circumstance, Ext.P10,

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O.P(C).No.93 of 2013

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order cannot be justified, it is argued.

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Learned counsel for respondent has contended that challenge to Exts.P3 and P3(a), report and plan is concluded by Ext.P7, judgment and that it is only in the course of evidence that petitioner could take up the question again if at all he is entitled. It is further contended that remittance of Exts.P3 and P3(a), report and plan is not necessary.

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It was by Ext.P5, memo that petitioner wanted the Advocate Commissioner to identify his property as well. The Advocate Commissioner could not have acted upon a memo. In Ext.P7, judgment this Court observed that request made by the petitioner before the Advocate Commissioner would in no way assist him to contend that his request for remittance ought to have been allowed. This Court also observed that if at all petitioner had any genuine and reasonable objection to the Commission report already prepared by the Advocate Commissioner, it is open to him to press such objections in the trial of the suit.

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As per observations in paragraphs 21 and 22 of Ext.P2, judgment in S.A.No.741 of 2000, it was necessary to identify property of petitioner and the respondent with reference to their title deeds and other relevant documents, if any. It is seen that

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O.P(C).No.93 of 2013

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property of petitioner is not identified. Without doing that, it may not be possible to decide the controversy raised and particularly the issue regarding title.

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In the above view of the matter I am inclined to think that Exts.P3 and P3(a), report and plan should be remitted to the Advocate Commissioner but it is not necessary to appoint a fresh Advocate Commissioner as requested for in Ext.P8. The report and plan could be remitted to the same Advocate Commissioner who prepared it with direction to identify property of petitioner as well with reference to his document of title and other relevant documents, if any.

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Resultantly this original petition is allowed as under:

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(i) Ext.P10, order dismissing Ext.P8, application is set aside.

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(ii) Exts.P3 and P3(a), report and plan are remitted to the Advocate Commissioner who prepared the same. He shall, with the assistance of the Surveyor identify property of petitioner as well with respect to the document of title and other relevant documents if any. If as prayed for in Ext.P8, application any other matter is also required to be clarified, trial court shall issue necessary direction. Trial court shall issue necessary direction to the Advocate Commissioner and Surveyor to expedite their proceeding so that suit of the

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O.P(C).No.93 of 2013

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year, 1994 is not further prolonged. (iii) Batta payable to the Surveyor and Advocate Commissioner as may be fixed by the trial court shall be borne by the petitioner.

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THOMAS P.JOSEPH, JUDGE

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Sbna

Kunhivalappil Kunhikannan v. Kizhakkeveettil Manoharan

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Kunhivalappil Kunhikannan v. Kizhakkeveettil Manoharan

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