Petitioners challenged an order dismissing applications to depute a Commissioner to ascertain facts and measure property. The High Court held that since boundaries were fixed and decreed in an earlier suit, reapportionment was unnecessary and no reason was stated for the Commissioner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
MONDAY, THE 19TH DAY OF OCTOBER 2015/27TH ASWINA, 1937
OP(C).No. 75 of 2014 (O)
PETITIONERS :
BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.P.A.ISMAIL SRI.SUNIL KUMAR A.G SRI.DIPU JAMES
RESPONDENTS :
R1 & 2 BY ADVS. SRI.DINESH R.SHENOY
SMT.N.M.SHEENA DAS SMT.DRISYA SURENDRAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 75 of 2014 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
EXT.P1: TRUE COPY OF PLAINT DTD. 09/01/2012 IN OS NO.14 OF 2012 OF THE MUNSIFF'S COURT, PERUMBAVOOR.
EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT DTD. NIL IN EXT.P1
EXT.P3: TRUE COPY OF I.A NO.255 OF 2013 DTD 05/02/2013.
EXT.P4: TRUE COPY OF OBJECTIONS DTD. 06/02/2013 IN EXT.P3
EXT.P5: TRUE COPY OF I.A NO.289 OF 2013 DTD. 08/02/2013.
EXT.P6: TRUE COPY OF OBJECTIONS DTD. 16/02/2013 IN EXT.P5
EXT.P7: TRUE COPY OF THE JUDGMENT DATED 04/09/2004 IN O.S NO.393/1998.
EXT.P8: TRUE COPY OF THE ORDER DTD. 10/12/2008 IN E.P NO.98/2007 IN OS NO.393/1998.
EXT.P9: TRUE COPY OF JUDGMENT DATED 14/9/2009 IN WPC NO.6389/2009.
EXT.P10: TRUE COPY OF COMMISSION REPORT AND ROUGH SKETCH DTD. 12/8/1998 IN O.S NO.393/1998.
EXT.P11: TRUE COPY OF COMMON ORDER DTD. 27/11/2013 IN I.A NO.255 OF 2013 AND IA NO.289/2013 IN O.S NO.14 OF 2012.
RESPONDENT(S)' EXHIBITS
EXT.R1(a) : COPY OF THE DECREE IN O.S.NO.393/1998, MUNSIFF COURT, PERUMBAVOOR
/TRUE COPY/
P.A TO JUDGE
AV
K.ABRAHAM MATHEW, J.
O.P.(C).No.75 of 2014
Dated this the 19th day of October, 2015
J U D G M E N T
Petitioners are defendants 1 to 3 in O.S.No.14 of 2012 of
Munsiff's Court, Perumbavoor. The first respondent herein filed O.S.No.393 of 1998 for a perpetual injunction. By Ext.P7 judgment, the suit was decreed. The property had been measured and the plan prepared by the Commissioner was made part of the decree. Later, the first respondent filed E.P.No.98 of 2007 for the assistance of the Court to construct a boundary wall along the boundary fixed by the Court. By Ext.P8 order, the Execution Court dismissed it. This was challenged in W.P.(C).No.6389 of 2009. As seen from Ext.P9, this Court found that the first respondent may enforce her legal rights and the writ petition was closed. Thereafter, the first respondent along with her husband, who is the second respondent in this original petition, filed O.S.No.14 of 2012 to restrain the petitioners from interfering with their right to put up a wall along the boundary line fixed in the earlier suit. The petitioners filed Exts.P3 and P5 applications to depute a Commissioner to ascertain certain facts and to measure the property on the basis of survey plan. By the impugned order
O.P.(C).No.75 of 2014
2
the trail court has dismissed the said applications.
In the result, this original petition is dismissed.
Sd/- K.ABRAHAM MATHEW, JUDGE
AV
2 issues framed by the court
Whether applications to depute a Commissioner for ascertaining boundaries and measuring property are maintainable when boundaries are already fixed and decreed in an earlier suit.
Whether a Commissioner can be deputed to ascertain facts for which no justification was stated.
K.P Varghese and others
Kunjamma
Ulahannan
K. Abraham Mathew
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
