Disposed

Devadas J v. Chellamma

Kerala HC3 Nov 2016OP(C)/153/2014

Case brief

AI extract

What is this about?

High Court disposed of in petition challenging dismissal of application to appoint fresh commissioner. Court directed lower court to examine existing commissioner first before deciding on remitting report or appointing fresh one to expedite disposal of decades-old suit.

What did the court decide?

Petition disposed directing court below to examine commissioner first before deciding on fresh survey/report remission.

Devadas J Vs Chellamma — 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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THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938

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OP(C).No. 153 of 2014 (O)

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-------------------------I.A.NO.2030/2012 IN OS.NO.288/1994 OF MUNSIFF COURT, KAYAMKULAM

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PETITIONER :

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DEVADAS.J., S/O. JANARDANAN, AGED 36 YEARS, URUVADAKKATHIL PEEDIKAYIL VEEDU, PUTHIYAVILA MURI, KANDALLOOR VILLAGE, ALAPPUZHA DISTRICT.

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BY ADV. SRI.B.RENJITHKUMAR

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RESPONDENT(S):

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1. CHELLAMMA, PADANATHARA THEKKETHIL VEEDU, PUTHIYAVILA MURI,

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KANDALLOOR VILLAGE, POTTOLI MARKET P.O, PIN-690 531

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2. VIJAYAMMA, PADANATHARA THEKKETHIL VEEDU, PUTHIYAVILA MURI, KANDALOOR VILLAGE, POTTOLI MARKET P.O,PIN-690 531

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3. VIJAYAN, PADANATHARA THEKKETHIL VEEDU, PUTHIYAVILA MURI, KANDALOOR VILLAGE, POTTOLI MARKET P.O, PIN-690 531

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4. NARAYANA PANICKER, PADANATHARA THEKKETHIL VEEDU, PUTHIYAVILA MURI,

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KANDALOOR VILLAGE, POTTOLI MARKET P.O, PIN-690 531

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*ADDL.R5 TO R7 IMPLEADED

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*ADDL.R5: MINI, D/O OF AMMINI, NARAYANA BHAVANAM, PUTHIYAVILA MURI, KANDALOOR VILLAGE, ALAPPUZHA DISTRICT.

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*ADDL.R6: V.MANU, S/O.VIDYADHARAN, NARAYANA BHAVANAM, PUTHIYAVILA MURI, KANDALOOR VILLAGE, ALAPPUZHA DISTRICT.

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2/-

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-2-

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OP(C).NO.153/2014

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*ADDL.R7: V.MANESH @ VINEETH VIDYA, S/O.VIDHYADHARAN, NARAYANA BHAVANAM, PUTHIYAVILA MURI, KANDALOOR VILLAGE, ALAPPUZHA DISTRICT.

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*ADDL.R5 TO R7 ARE IMPLEADED AS PER ORDER DATED 3/11/2016 IA.NO.2111/2015

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R1 TO R3 BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH SRI.RAAJESH S.SUBRAHMANIAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 153 of 2014 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE JUDGMENT DATED 17-02-2009 IN A.S NO.208/2000 OF THE ADDITIONAL DISTRICT JUDGE-II, MAVELIKKARA
EXHIBIT P2	TRUE COPY OF THE JUDGMENT DATED 23-07-2010 IN FAO NO.127 OF 2009 OF THIS HONOURABLE COURT
EXHIBIT P3	TRUE COPY OF THE COUNTER CLAIM (UNDATED) FILED BY NEWLY ADDED ADDITIONAL DEFENDANTS
EXHIBIT P4	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT ON TO THE COUNTER CLAIM ON 22-06-2011
EXHIBIT P5	TRUE COPY OF THE I.A NO.2030/2012 IN O.S NO.238/1994 FILED BY THE PETITIONER AND OTHERS ON 21-07-2012 FOR APPOINTMENT OF A COMMISSIONER AND A SURVEYOR
EXHIBIT P6	TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENT TO THE I.A 2030/2012 ON 06-08-2012
EXHIBIT P7	TRUE COPY OF THE ORDER DATED 11-11-2013 IN I.A NO.2030/2012 IN O.S 238/1994 OF THE MUNSIFF'S COURT, KAYAMKULAM

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K.RAMAKRISHNAN, J.

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=====================

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O.P.(C). No.153 of 2014

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===================================

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Dated this the 3^rd day of November, 2016

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JUDGMENT

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This petition was filed by the petitioner challenging Ext.P6

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order passed by the court below dismissing the application I.A. 2030 of 2012 in O.S.No.288 of 1994 on the file of the Munsiff's Court Kayamkulam under Article 227 of the Constitution of India.

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It is alleged in the petition that respondents herein as plaintiffs filed O.S.No.288 of 1994 for declaration of the title, fixation of boundary and also for recovery of possession and other reliefs after evidence the suit was dismissed stating that Ext.C2 and C2(a) report and plan submitted by the commissioner are not helpful to grant the relief as they were not examined and the suit is bad for non joinder of necessary parties as well. The plaintiffs filed A.SNo.208 of 2000 before the Additional Munsiff's Court-II, Mavelikkara and the Additional District Judge by Ext.P1 judgment allowed the appeal, setting aside the judgment of dismissal and remanded the case for fresh disposal giving opportunity to the plaintiffs to implead the necessary parties and also giving opportunity for the plaintiff as well as defendants to examine the

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O.P.(C).No.153 OF 2014 -2-

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commissioner and surveyor to ascertain as to whether the commissioners report has to be remitted for getting clarification which the court below felt necessary for proper adjudication of the case. Though the defendant in the case filed FAO127 of 2009 before this Court, this Court dismissed the same as per Ext.P2 judgment. It is made clear in Ext.P2 that the parties have liberty to raise all the contentions and to adduce further evidence before the court below. Thereafter, the Additional defendants were impleaded and they filed Ext.P3 counter claim. The respondents filed replications to the counter claim evidenced by Ext.P4. Petitioner filed Ext.P5 application as I.A.2030 of 2012 for appointment of commissioner and surveyor for preparing a fresh plan and report on the basis of the things mentioned in the petition. The respondents filed Ext.P6 objection. The court below by Ext.P7 order dismissed the application. Aggrieved by the same the present petition has been filed by the 8^th additional defendant.

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Heard Shri.Renjith Kumar, learned counsel appearing for the petitioner and Shri. Harikumar, learned counsel appearing for the respondents.

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The learned counsel for the respondents submitted that the court below was not justified in dismissing the

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applications. Court below ought to have allowed the applciation. Further the learned counsel also submitted if for any reason this Court is not inclined to set aside the order, he may be permitted to put question to the commissioner and surveyor on this aspect and direct the court below to consider those aspects also while considering the objection in commissioner's report and pass appropriate orders on the same or permitting to file fresh application for this purpose.

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On the other hand, the learned counsel for the respondent submitted that the court below had only dismissed the application stating that time has not arisen for that purpose. In view of the remand order passed by the Appellate Court, only after examination of the commissioner and surveyor, the question of remitting the commissioner's report will arise. Further, the counter claim according to the learned counsel for the respondent is not maintainable at that stage.

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It is an admitted fact that the suit is of the year 1994 filed by the respondents' as plaintiffs for declaration of title, fixation of boundary and recovery of possession with other reliefs. A commission was taken out and commissioner filed Exts.C2 and C2(a) report and plan identifying the properties, but the original

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O.P.(C).No.153 OF 2014 -4-

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defendant filed objection to the same, but without examining the commissioner, the commissioner's report and plan were marked. There was a contention in the written statement that apart from the original defendant, others are also necessary parties. After evidence, the court below dismissed the suit stating that the suit is bad for non joint of necessary parties and Exts.C2 and C2(a) are not acceptable as the commissioner has not examined. The defeated plaintiffs filed A.S.208 of 2000 before the Additional District Court-II, Mavelikkara and the Additional District Judge by Ext.P1 judgment allowed the appeal and remanded the case with following directions:-

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“In the result, this appeal is allowed. The judgment and decree of the lower court are set aside and the suit is remanded to the lower court for fresh disposal in accordance with law. The plaintiffs/appellants are directed to file necessary application before the lower court for impleading Bhasurangi and Rajamma and also the legal representatives of deceased 1^st defendant in the suit and on filing such application the lower court shall consider the application and dispose of the same on merits. If the defendants wanted to challenge and dispute Ext.C2 and C2(a), they are directed to take steps to examine the commissioner as well as the surveyor who prepared Ext.C2 and C2(a). But I may also state that the plaintiffs are also at liberty to examine the commissioner and surveyor who prepared Ext.C2 and C2(a). After their examination if the lower court finds that what is stated in the judgment of the lower court with regard to Ext.C2(a) plan was true and correct, then the lower court is at liberty to remit Ext.C2 and C2 (a) to the very same commissioner with specific directions necessary for the measurement and survey of the plaint schedule properties and if the

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commissioner and surveyor who had prepared Ext.C2 and C2(a) are not available for examination, the plaintiffs as well as the defendants can take steps to appoint a fresh advocate commissioner to measure out and survey the plaint schedule properties with the help of the present Taluk surveyor or if he is not available any other approved surveyor. Since I am remanding the case, both sides are allowed to adduce further evidence if any in support of their case. The parties are directed to appear before the lower court on 10/03/2009.”

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Though the respondents in the appeal filed FAO 127 of

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2009 against the order of remand, that was dismissed by this Court by Ext.P2 judgment wherein it has been observed that it is

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made clear that the parties are at liberty to raise all the contentions available to them. They are at liberty to adduce further evidence if so advised. It is thereafter, additional defendants including the legal representatives of original 1^st defendant were impleaded in the present suit and the present petitioner is one of the additional defendants so impleaded. After remand, the additional defendants filed Ext.P3 counter claim and the respondents filed Ext.P4 replication to the same. It is thereafter that the petitioner filed Ext.P5 application as I.A.2030 of 2012to appoint a fresh commission with a surveyor to measure the properties for reporting the things mentioned in the petition. The respondents herein filed Exts.P6 objection and the petition was dismissed by the court below by Ext.P7order stating that the

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petition is not allowable at this stage and the petition is dismissed.

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It may be mentioned here that though the learned

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counsel for the respondents submitted that the counter claims is not maintainable, as original defendant has not raised any counter claim. This Court is not going to those aspects as it is for the court below to consider those aspects if such an objection has been raised by the plaintiff who is the counter claim defendant in the counter claim raised by the additional defendants. Further the counsel for the plaintiffs who are the respondents herein submitted that they have already filed an application to examine the commissioner as well as the surveyor.

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As observed by the court below in the impugned order, only after examination of the commissioner and surveyor the question of either remitting the commissioner's report or setting aside the commissioner's report will arise and it is for that court to consider those aspects and pass appropriate orders in that applications as directed by the Appellate Court in Ext.P1 judgment. When the commissioner and surveyor have to be examined, the additional defendants are also entitled to put question to the commissioner regarding the sufficiency or otherwise of Exts.C2 and C2(a) for the purpose of deciding the issues. They can also

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put questions on the basis of the things mentioned in Ext.P5 petition to the commissioner and the surveyor and if the court is satisfied that on the basis of the objections raised and evidence collected if it is required that the commissioner's report will have to be remitted for the purpose of considering all the aspects on the basis of objections raised by them in the original objection as well as in Ext.P5 petition, then court below is directed to consdier those aspects and pass appropriate orders in respect of C2 and C2(a) report and plan submitted by the commissioner as directed by the Appellate Court in Ext.P1 judgment.

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With the above directions and observations the petition is disposed of. Considering the fact that the case is of the year 1994 all earnest attempt to be made by the court to expedite disposal of the case as expeditiously as possible but before the courts close for summer vacation.

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Registry is directed to communicate this judgment to the concerned court immediately.

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K.RAMAKRISHNAN, JUDGE

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SKV

Devadas J v. Chellamma

Case brief

What is this about?

What did the court decide?

Devadas J v. Chellamma

Case brief

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What did the court decide?

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