Partly allowed

Vazhamthodi Saidalavi v. Thayyil Ramla

Kerala HC1 Jul 2016OP(C)/1324/2016

Case brief

AI extract

What is this about?

The High Court set aside the lower court's order accepting the Advocate Commissioner's report on property boundaries, finding it failed to appreciate the report correctly. Due to the petitioner's delay, a pre-trial challenge was barred, but the petitioner was granted an opportunity to examine the Commissioner during trial to ensure reliability.

What did the court decide?

The impugned order was set aside. The petitioner was allowed to challenge the Commission Report during the trial by examining the Commissioner and Surveyor.

Vazhamthodi Saidalavi Vs Thayyil Ramla — Property and Title | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

FRIDAY, THE 1ST DAY OF JULY 2016/10TH ASHADHA, 1938

¶5

OP(C).No. 1324 of 2016 (O)

¶6

--------------------------(I.A.NO.69/2016 IN OS.NO. 162/2013 OF MUNSIFF COURT, TIRUR)

¶7

PETITIONER :

¶8

VAZHAMTHODI SAIDALAVI, AGED 59 YEARS, S/O.MUHAMMEDKUTTY HAJI, VALAVANNUR AMSOM, DESOM, VALAVANUR POST, TIRUR TALUK, MALAPPURAM DISTRICT.

¶9

BY ADVS.SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN

¶10

RESPONDENT(S):

¶11

1. THAYYIL RAMLA, D/O.MUHAMMED @ BABU, VALAVANNUR AMSOM DESOM, VALAVANUR POST, TIRUR, MALAPPURAM DISTRICT, PIN -676 551

¶12

2. SADIQ,

¶13

S/O.RAMALA, THAYYIL HOUSE, VALAVANNUR AMSOM DESOM, VALAVANUR POST, TIRUR, MALAPPURAM DISTRICT, PIN -676 551

¶14

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

sts

¶16

OP(C).No. 1324 of 2016 (O)

¶17

APPENDIX

¶18

PETITIONER(S)' EXHIBITS

¶19

P1 TRUE COPY OF PLAINT IN OS.NO. 162/2013 DATED 03.06.2013 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR

¶20

P2 TRUE COPY OF DOC.NO. 572/1995 OF KALPAKANCHERRY SRO AND DATED 21.03.1995

¶21

P3 TRUE COPY OF WRITTEN STATEMENT DATED 04.12.2013 IN OS.NO.

¶22

162/2013 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR

¶23

P4 TRUE COPY OF ROUGH SKETCH PREPARED BY THE ADVOCATE COMMISSIONER IN IA.NO. 614/2013 IN OS.NO. 162/2013 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR AND DATED 18.06.2013

¶24

P5 TRUE COPY OF REPORT OF THE ADVOCATE COMMISSIONER IN IA.NO. 614/2013 IN OS.NO. 162/2013 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR DATED 18/6/2013.

¶25

P6 TRUE COPY OF PLAN SUBMITTED BY THE ADVOCATAE COMMISSIONER IN IA.NO. 1027/2013 IN OS.NO. 162/2013 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR DATED 29.09.2015

¶26

P7 TRUE COPY OF REPORT SUBMITTED BY THE ADVOCATAE COMMISSIONER IN IA.NO. 1027/2013 IN OS.NO. 162/2013 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR DATED 29.09.2015

¶27

P8 TRUE COPY OF IA.NO. 69/2016 DATED 05.01.2016 FILED BY THE

¶28

PETITIONER IN OS.NO. 162/2013 BEFORE THE MUNSIFF'C OURT, TIRUR

¶29

P9 TRUE COPY OF OBJECTION DATED 08.01.2016 TO EXT P8

¶30

P10 TRUE COPY OF ORDER DATED 12.01.2016 IN IA.NO. 69/2016 IN OS.NO. 162/2013 PASSED BY MUNSIFF'C OURT, TIRUR

¶31

RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K. HARILAL, J.

= = = = = = = = = = = = = = = O.P.(C) No.1324 of 2016

¶38

- - - - - - - - - -- - - - - - - - - - - - - - - - - - - Dated this the 1st July, 2016

¶39

J U D G M E N T

¶40

The petitioner is the plaintiff in Original

¶41

Suit No.162 of 2013, on the files of the

¶42

Munsiff's Court, Tirur. The said suit was one for

¶43

permanent prohibitory injunction, restraining the defendants from trespassing into the plaint

¶44

schedule property and not to cause any obstruction to take water from the pond situated in the plaint schedule property. Exts.P1 and P2 are the survey sketch and report submitted by the Advocate Commissioner. Since the respondents disputed the identity of the property and contended that the properties are liable to be identified with reference to the title deeds the petitioner filed Interlocutory Application No.1027 of 2013 and the Commissioner inspected the property and submitted a report and plan with

¶45

O.P.(C) No.1324 of 2016

¶46

::-2-::

¶47

the assistance of a Surveyor. Ext.P6 is the Plan

¶48

and Ext.P7 is the report, filed by the

¶49

Commissioner.

¶50

The petitioner filed an objection to the Commission Report, stating that the Commissioner has not clearly identified the exact location of the pond, which is actually situated in the plaint schedule property and the Surveyor told him that the position of the disputed pond is mistakenly marked in the plan. It is also contended that the Commissioner has not mentioned the disputed pond in the report. After considering the said objection, the court below rejected the objection and accepted the Commission Report with a liberty to the petitioner to challenge the same during the course of trial, by examining the Commissioner and Surveyor. The legality of this order, is under challenge in this Original Petition (Civil).

¶51

Heard the learned counsel for the

¶52

petitioner.

¶53

O.P.(C) No.1324 of 2016

¶54

::-3-::

¶55

The sum and substance of the argument

¶56

advanced by the learned counsel for the petitioner is that the Commissioner has not specifically stated the exact location of the pond in the report. So also, in Ext.P4 sketch filed earlier, the location of the pond is shown erroneously. According to the learned counsel for the petitioner, even though in the sketch, the pond is marked within the property of the respondents/defendants, in the description shown in the plan, the pond is included as a part of the defendant's property only. Therefore, marking of the pond in the sketch does not tally with the description in the very same sketch.

¶57

Going by the impugned order, it is seen that the court below has rejected the objection, mainly for two reasons. Firstly, it is stated that the objection to the Commission Report was filed belatedly just before the commencement of trial. The Advocate Commissioner filed the report on

¶58

O.P.(C) No.1324 of 2016

¶59

::-4-::

¶60

29.09.2015, and thereafter the case was posted for filing objection to the Commissioner's report and for steps to 16.10.2015 and thereafter, the case adjourned for taking steps as a last chance to 29.10.2010. Since, no steps were taken, the case included in the special list for trial on 06.01.2016 with a direction to take steps within 15 days. But, the petitioner did not take any steps within the time granted by the court and no petition was filed by the petitioner seeking to set aside the Commission Report till 06.01.2016. On 06.01.2016, the petitioner filed an application for adjournment of the case and the present petition for remitting the Commissioner's Report. No explanation has been offered by the petitioner for not taking steps in time. Thus, according to the court below, there is an inordinate delay in filing the petition. Going by the sequences of events and postings, I do not find any reason to interfere with the said finding.

¶61

O.P.(C) No.1324 of 2016

¶62

::-5-::

¶63

Coming to the substance of the report,

¶64

the court below arrived at a conclusion that the Commissioner has reported that the pond is situated in the property of the respondents/ defendants just on the western side of the canal, which stands as a boundary separating the plaint schedule property and the respondents' property, as rightly submitted by the learned counsel for the petitioner. Going by the report, it is seen that the Commissioner has not specifically reported the exact location of the pond and there is no specific statement to the effect that the pond is situated in the respondents'/defendants' property.

¶65

In the above view of the matter, I find that the court below failed to appreciate the Commissione Report in its correct perspective. Therefore, if the observations made by the court below are allowed to stand, it will cause prejudice to the petitioner. Consequently, the

¶66

O.P.(C) No.1324 of 2016

¶67

::-6-::

¶68

impugned order will stand set aside. But,

¶69

considering the inordinate delay from the part of the petitioner to take steps to challenge the Commission Report, when the case was posted for pre-trial steps, the petitioner will not be given an opportunity to challenge the Commission Report, before the trial. Certainly, the petitioner will be given an opportunity to challenge the Commission Report during the course of trial, by examining the Commissioner and the Surveyor. After examining the Commissioner and the Surveyor, if the court feels that the report and plan are not reliable, it is incumbent upon the court below to remit back the report and plan to the Commissioner, so as to make necessary corrections, after inspecting the property again and further trial will stand postponed, till the filing of the corrected survey plan and report. On the other hand, if the court finds that survey plan and report are reliable, to resolve the question in

¶70

O.P.(C) No.1324 of 2016

¶71

::-7-::

¶72

controversy involved in the suit, the court below

¶73

can proceed with the trial and pass final orders, accordingly.

¶74

This Original Petition (Civil) is disposed of accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Vazhamthodi Saidalavi v. Thayyil Ramla

Case brief

What is this about?

What did the court decide?

Vazhamthodi Saidalavi v. Thayyil Ramla

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Rajagopal.T Vs Kotak Mahindra Prima Ltd.

Alli Vs Jayaraman

Asuma Beevi Vs T.K. Sreedharan

Shaji Vs Nizarudeen

Muhammed K.V. Vs M.P. Ajithkumar

M/S. Comfort Polymers Vs V.P. Janeesha