Allowed

Parvathi Soorya v. Kalathil Nabesa

Kerala HC9 Aug 2016OP(C)/109/2015

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging an order dismissing an application to remit a Commissioner's report. The Supreme Court held the order improper, set it aside, and mandated the lower court to recall the report, conduct a survey based on title deeds, and examine building rule violations.

What did the court decide?

The impugned order was set aside. The court directed the lower court to remit the Commissioner's report to identify properties based on title deeds and appoint a surveyor.

Parvathi Soorya Vs Kalathil Nabesa — Property and Title | Kerala HC (2016)

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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 K.RAMAKRISHNAN

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TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938

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OP(C).No. 109 of 2015 (O)

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O.S.NO.54/2013 OF MUNSIFF MAGISTRATE COURT, MANANTHAVADY.

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PETITIONER/PETITIONER/PLAINTIFF:

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PARVATHI SOORYA, AGED 18 YEARS, D/O.T.J.MATHEW, THURUTHIYIL HOUSE, KAYAKUNNU POST, NADAVAYAL AMSOM, KAYAKUNNU DESOM, SULTHAN BATHERY TALUK.

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BY ADV. SMT.CELINE JOSEPH

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RESPONDENT/RESPONDENT/DEFENDANT:

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KALATHIL NABESA, AGED ABOUT 65 YEARS, FATHERS NAME AND HUSBAND'S NAME IS NOT KNOWN, RESIDING AT KALLIYOTTUKUNNU, MANANTHAVADY POST, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, PIN-673505.

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THIS OP(CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 109 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT	P1:	TRUE COPY OF THE MUNSIFF MAGISTRAT	PLAINT IN OS.NO.54/2013 OF THE E COURT, MANANTHAVADY.
EXHIBIT	P2:	TRUE COPY OF THE FILED BY THE DEFE MUNSIFF MAGISTRAT	COPY OF THE WRITTEN STATEMENT NDENT IN OS.NO.54/2013 OF THE E COURT, MANANTHAVADY.
EXHIBIT	P3:	TRUE COPY OF THE OS.NO.54/2013.	COMMISSION REPORT IN
EXHIBIT	P4:	TRUE COPY OF THE EXT.P3.	SKETCH PRODUCED ALONG WITH
EXHIBIT	P5:	TRUE COPY OF THE THE APPLICATION T REPORT.	AFFIDAVIT FILED IN SUPPORT OF O REMIT THE COMMISSIONER'S
EXHIBIT	P6:	TRUE COPY OF THE IA.NO.317/2014 IN	ORDER DATED 17.11.2014 IN OS.NO.54/2013.
EXHIBIT	P7:	TRUE COPY OF THE IA.NO.104/2013 OF	ORDER DATED 02.05.2013 IN THE VACATION COURT, KALPETTA.
RESPONDE -------	NT(S)' -------	EXHIBITS: ---------	NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

K.RAMAKRISHNAN, J.

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This is a petition filed by the petitioner challenging Ext.P6 order passed by the court below, under Article 227 of the Constitution of India.

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It is alleged in the petition that the

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petitioner filed Ext.P1 suit, O.S. No.54 of 2013 before the Munsiff's Court, Mananthavady for injunction restraining the respondent from constructing a building in her property in violation of the Kerala Building Rules and without providing proper set backs as provided under the Building Rules. Respondent-defendant filed Ext.P2 written statement contending that there is no violation and she is constructing the building as per the plan provided. Petitioner has taken out an ex parte

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O.P(C) No.109 of 2015

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-: 2 :-

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commission and the Commissioner submitted Ext.P3 report and Ext.P4 sketch plan. In the report it was mentioned that there is no visible boundaries demarcating the properties and as such it is not possible to ascertain whether there is any violation or not. In order to identify the properties and ascertain as to whether there is any encroachment made, petitioner filed Ext.P5, I.A. No.317 of 2014 along with affidavit for remitting the Commissioner's report to measure the property on the basis of the documents and find out violation of the Building Rules if any committed by the defendant in constructing the building with the help of a surveyor. That petition was dismissed by the court below by Ext.P6 impugned order.

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Though notice was sent to the respondent,

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O.P(C) No.109 of 2015

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-: 3 :-

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it was not returned and the notice was declared to

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be served on the respondent as per the High Court Rules.

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Heard Shri Gracious Kuriakose, learned

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Senior Advocate appearing for the petitioner.

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Learned Senior Counsel submitted that

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without measuring the properties it is not possible

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to come to a conclusion whether there is any trespass or not and there is any violation of the Building Rules. According to the learned counsel unless the properties are measured with reference to documents and the properties located on land, the plaintiff may not be ale to establish her case.

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It is an admitted fact that the suit is

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one filed by the plaintiff-petitioner herein through next friend for permanent injunction restraining the

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O.P(C) No.109 of 2015

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-: 4 :-

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defendant who is the respondent herein from proceeding with the construction in violation of the provisions of the Building Rules. It is true that the petitioner had taken out an ex parte commission and the Commissioner had submitted Ext.P3 report and Ext.P4 sketch plan. It is mentioned in the Commissioner's report that “at the time of my inspection I could see that the plaint schedule property does not have any physical demarcation to separate the plaint schedule property from the adjacent defendant's property”. It is also mentioned that though the Commissioner wanted the defendant to provide her documents of title, she was not prepared to give the same. The court below had come to the conclusion that since plaintiff and defendant are having properties in different survey

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O.P(C) No.109 of 2015

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-: 5 :-

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numbers and plaintiff had no case that the defendant had encroached into her property, there is no necessity for a survey commission to be appointed for that purpose. It may be mentioned here that case of the plaintiff was that the defendant has constructed the building in the property in such a way as to encroach the property of the plaintiff without providing proper set backs as provided in the Building Rules. If this is to be ascertained, the properties will have to be measured on the basis of the documents, boundaries will have to be located and unless this is done, it cannot be proved

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as to whether the building is constructed in violation of the Building Rules. In order to ascertain the same, the properties will have to be located on the basis of title deeds of the parties.

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O.P(C) No.109 of 2015

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-: 6 :-

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Reasons given by the court below for dismissing the application appear to be not proper. Hence Ext.P6 order passed by the court below in I.A. No.317 of 2014 in O.S.No.54 of 2013 is liable to be set aside.

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In the result, the petition is allowed. Exhibit P6 order passed by the court below in I.A. No.317 of 2014 in O.S.No.54 of 2013 on the file of the Munsiff's Court, Mananthavady is set aside and the application is allowed. The court below is directed to remit the Commissioner's report for the purpose of identifying and locating the properties on the basis of title deeds and then found out as to whether the building constructed by the defendant is being constructed in tune with the Building Rules. The court below is also directed to give assistance

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O.P(C) No.109 of 2015

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-: 7 :-

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of a surveyor to the Commissioner to identify and locate the properties. The court below shall fix the remuneration for the Commissioner and surveyor's fee

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for this purpose. The expenses for this purpose has

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to be met by the petitioner.

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Interim order granted is vacated.

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Registry is directed to communicate a copy of

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this judgment to the court below immediately.

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Sd/-

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K.RAMAKRISHNAN, JUDGE.

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VSV

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/True copy/

Parvathi Soorya v. Kalathil Nabesa

Case brief

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Parvathi Soorya v. Kalathil Nabesa

Case brief

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