Allowed

K.V. Josemon v. Joshymon V.T.

Kerala HC28 Jul 2016OP(C)/1580/2016

Case brief

AI extract

What is this about?

Full Bench allowed an original petition under Article 226 of the Constitution to set aside an order dismissing an application for remitting a commissioner's report. The court directed the commissioner to measure both properties, locate them in a single plan, and ascertain surrendered portions to resolve boundary disputes before expediting the trial.

What did the court decide?

Ext.P10 order set aside; commissioner's report remitted to ascertain overlapping properties, surrendered portions, and prepare new plan; trial to be expedited.

K.V. Josemon Vs Joshymon V.T. — Landlord and Tenant | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

THURSDAY, THE 28TH DAY OF JULY 2016/6TH SRAVANA, 1938

¶5

OP(C).No. 1580 of 2016 (O)

¶6

IA.NO.3930/2015 IN OS.666/2009 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA

¶7

PETITIONER(S):

¶8

1. K.V. JOSEMON, S/O.VARKEY, KOCHUVEEDU, RAMANKARY P.O, ALAPPUZHA DISTRICT.

¶9

2. NISHA ANTONY, W/O.K.V.JOSEMON, KOCHUVEEDU, RAMANKARY P.O, ALAPPUZHA DISTRICT.

¶10

BY ADVS.SRI.JOMY GEORGE

¶11

SRI.DEEPAK MOHAN SMT.A.MINI JOSEPH KUM.M .ANJU THOMAS

¶12

RESPONDENT(S):

¶13

JOSHYMON V.T., ARACKAL LEKSHAM VEETIL, VAZHAYIL, PULINCUNNU P.O, ALAPPUZHA DISTRICT, PIN - 688 504.

¶14

BY ADV. SRI.ROY CHACKO

¶15

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

¶17

OP(C).No. 1580 of 2016 (O)

¶18

APPENDIX

¶19

PETITIONER(S)' EXHIBITS

¶20

P1 TRUE COPY OF THE PLAINT IN O.S.NO.666/2009 FILED BY THE PETITIONERS HEREIN BEFORE THE HON'BLE ADDITIONAL MUNSIFF COURT ALAPPUZHA.

¶21

P2 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONERS HEREIN BEFORE THE HON'BLE ADDITIONAL MUNSIFF COURT ALAPPUZHA IN O.S.NO.666/2009.

¶22

P3 TRUE COPY OF THE I.A.NO.2926/2012 FILED BY THE PLAINTIFF TO APPOINT AN ADVOATE COMMISSIONER IN O.S.NO.666/2009 FILED BY THE PETITIONERS HEREIN BEFORE THE HON'BLE ADDITIONAL MUNSIFF COURT ALAPPUZHA.

¶23

P4 TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER BEFORE THE HON'BLE ADDITIONAL MUNSIFF COURT, ALAPPUZHA IN O.S. NO.666/2009

¶24

P5 TRUE COPY OF THE APPLICATION I.A.NO.3/2014 FILED BY THE PETITIONER BEFORE THE HON'BLE ADDITIONAL MUNSIFF COURT, ALAPPUZHA.

¶25

P6 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A NO.3/2014 OF THE HON'BLE ADDITIONAL MUNSIFF COURT, ALAPPUZHA.

¶26

P7 TRUE COPY OF THE REPORT FILED BY THE COMMISSIONER BEFORE THE HON'BLE ADDITIONAL MUNSIFF COURT, ALAPPUZHA.

¶27

P8 TRUE COPY OF THE I.A.NO.3930/2015 FILED BY THE PETITIONER BEFORE THE HON'BLE ADDITIONAL MUNSIFF COURT, ALAPPUZHA.

¶28

P9 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A. NO.3930/2015 BEFORE THE HON'BLE ADDITIONAL MUNSIFF COURT, ALAPPUZHA.

¶29

P10 TRUE COPY OF THE ORDER DATED 10.03.2016 IN I.A. NO.3930/2015 BEFORE THE HON'BLE ADDITIONAL MUNSIFF COURT, ALAPPUZHA.

¶30

RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

K. RAMAKRISHNAN, J.

¶36

O.P.(C).No.1580 of 2016

¶37

....................................................... Dated this the 28^th day of July, 2016.

¶38

JUDGMENT

¶39

This original petition was filed by the petitioners, who are the additional defendants 2 and 3 in the lower court, challenging Ext.P10 order passed by the court below in I.A.No.3930/2015 in O.S.No.666/2009 under Article 227 of the Constitution of India.

¶40

The suit was filed by the respondent herein originally against the predecessor of the present defendants for perpetual injunction restraining him from trespassing into the plaint schedule property and committing any act of waste in item 2 of plaint schedule property and also for recovery of possession of item 2 of plaint schedule property. A portion of the property was sold by the original defendant in favour of second and third defendants. They were also impleaded as additional defendants 2 and 3 in the case. Their case was that they have not trespassed into any portion and they are in possession of the property. A portion of the property was surrendered for the purpose of the road on the southern side and there is a pathway on the western side of the plaint schedule property. That also has to be included in the plaintiff's property. If those portions were excluded, then the plaintiff will not be in possession of the property claimed by him. Earlier a commission was taken out and commissioner filed Ext.P4 report along with survey plan showing the details required for that purpose.

¶41

¶42

O.P.(C).No.1580 of 2016

¶43

Dissatisfied with the commissioner's plan and report, the present petitioners have filed I.A.No.3/2014 as Ext.P5 for remitting the commissioner’s report to ascertain certain facts namely to measure their property and also ascertain the portion of the property surrendered to the road from the property of the plaintiff on the southern side and also the extent covered by the footpath on the western side of the plaint schedule property and ascertain as to whether that will form part of the plaintiff’s property. Though objections were raised, the same was remitted to the commissioner and Ext.P7 report with the plan was obtained. Dissatisfied with the same, the present petitioners have again filed Ext.P8 petition as I.A.No.3930/2015 stating that the commissioner has not ascertained the things that was sought to be ascertained in their objection.

¶44

The respondent herein filed objection stating that all these things were already mentioned in the earlier report and there is no necessity for remitting the same. After considering the petitions and objections, the learned munsiff dismissed the application as per Ext.P10 impugned order, which is being under challenge.

¶45

Heard Sri.Jomy George, learned counsel appearing for the petitioners and Sri. Roy Chacko, learned counsel appearing for the respondent.

¶46

Learned counsel for the petitioners submitted that the

¶47

¶48

O.P.(C).No.1580 of 2016

¶49

suit is one for recovery of possession of a portion of the property said to be trespassed upon and also for injunction. The extent of the property in the possession of the plaintiff was disputed by the defendants. In order to ascertain the same, commissioner’s report was remitted but unfortunately all the things mentioned in the objection were not considered by the commissioner.

¶50

On the other hand, learned counsel appearing for the respondent submitted that a perusal of Exts.P4 and P7 submitted by the commissioner will go to show that whatever things required to be done by the commissioner have been complied with and there is no necessity to remit the commissioner's report for that purpose again.

¶51

It is an admitted fact that the suit was filed by the plaintiff, who is the respondent herein, for recovery of possession of item No.2 of plaint schedule property said to have been trespassed upon by the defendants and also for perpetual injunction. The case of the defendants was that there is no encroachment and they are in possession of the property which they have obtained by their document of title and certain portions were surrendered for the purpose of the road and pathway by the plaintiff and if those portions were excluded, then the plaintiff is not entitled to get the relief sought for. Earlier an application has been filed for appointing a commissioner for the purpose of identifying the property.

¶52

O.P.(C).No.1580 of 2016 4

¶53

Unfortunately the commissioner had filed Ext.P4 report and plan measuring the property of the plaintiff alone and in that, the encroached portion was not specifically mentioned. But subsequently on the basis of the application filed by the defendants, the commissioner’s report was remitted to the commissioner in which they have specifically mentioned that their property has to be measured and also to ascertain the portion of the property that has been surrendered for the purpose of the road on the southern side and also the pathway that is being on the western side of the plaintiff's property. But instead of measuring both the properties and locating the plaint schedule property and defendants' property in a single plan, the commissioner had only submitted a report with the plan showing the property of the defendants alone in which a portion of the property covered by the document of assignment in favour of defendants 2 and 3 was said to be on the western side of the property of the defendants which is claimed to be the property of the plaintiff. It is also seen from both the reports that though parties have conceded before the commissioner that some portion having an extent of half cent was surrendered for the purpose of road on the southern side no attempt was made by the commissioner to ascertain as to whether that property was excluded from the property and what is the extent of the property including that portion for the purpose of ascertaining the actual extent of the

¶54

O.P.(C).No.1580 of 2016 5

¶55

property now in the possession of the parties after surrendering some portion for the formation of the road on the southern side. Further the extent of the property covered by pathway on the western said to be passing through property of the plaintiff was also not specifically mentioned by the commissioner. In order to ascertain whether there is any trespass and also ascertain as to whether there is any overlapping of properties of the plaintiff and defendants, it is necessary for the commissioner to measure both the properties on the basis of the documents and locate the same in the same plan otherwise there is a possibility of some confusion being caused to ascertain the property sought to be recovered if ultimately the plaintiff is able to establish that property is included in his title deed. Under such circumstances, the order passed by the court below dismissing the application for remitting the commissioner's report is not proper and that is liable to be set aside.

¶56

In the result, the petition is allowed and Ext.P10 order passed by the court below dismissing I.A.No.3930/2015 in OS.No.666/2009 is set aside and the application is allowed and the report of the commissioner is remitted to the commissioner for the purpose of ascertaining the facts mentioned by this court in the judgment and file a fresh plan and report with the help of the surveyor. After getting the surveyor's plan and report, the court

¶57

¶58

O.P.(C).No.1580 of 2016

¶59

below is directed to expedite the trial of the case as expeditiously as possible considering the fact that the case is of the year 2009. Interim order passed by this court is vacated.

¶60

With the above directions and observations, the original petition is disposed of. Office is directed to communicate a copy of this judgment to the court below at the earliest.

¶61

Sd/K. RAMAKRISHNAN, JUDGE.

¶62

/true copy/

¶63

P.S to Judge

¶64

K.V. Josemon v. Joshymon V.T.

Case brief

What is this about?

What did the court decide?

K.V. Josemon v. Joshymon V.T.

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

Soman Vs Ammini

Thomas John Vs T.T.Philip @ Monachan

Raghavan Nair Vs Valsamma Mathew

Sheeba Raj Vs Baby Pathrose

Dr. Alexander Thomas Vs Mathew Alexander

Rukma Bai Vs Anantheshwara Pai