Allowed

Vijayan Nambiar v. Balamrishnan Chelorakuniyil

Kerala HC10 Aug 2016OP(C)/1665/2016

Case brief

AI extract

What is this about?

The High Court allowed a petition under Article 227 setting aside an order that refused to remit a Commissioner's report. The Court directed the lower court to remit the report for note-taking regarding pathway width, description, and existence of alternate pathways to aid the determination of the easement claim.

What did the court decide?

The impugned order Ext.P5 set aside and I.A. 3270/2015 allowed. Commissioner's report and plan remitted for note-taking regarding pathway width, description, and existence of alternate pathways. Court

Vijayan Nambiar Vs Balamrishnan Chelorakuniyil — 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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WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938

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OP(C).No. 1665 of 2016 (O)

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--------------------------I.A. NO.3270/2015 IN OS. NO.200/2015 OF ADDL. MUNSIFF COURT, KANNUR.

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PETITIONERS/PETITIONERS/DEFENDANTS NO.1 & 2:

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1. VIJAYAN NAMBIAR,

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S/O GOVINDAN NAMBIAR, AGED 54 YEARS, RESIDING AT BENEESIYA,

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P.O. CHELERI, KANNUR- 670 604.

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2. HYMAVATHY M.K., W/O. VIJAYAN NAMBIAR, AGED 44 YEARS, RESIDING AT BENEESIYA, P.O. CHELERI, KANNUR- 670 604.

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(PETITIONERS NO.1 & 2 THROUGH POWER OF ATTORNEY HOLDER ANANDHAKRISHNAN M.K., S/O NARAYANAN NAMBIAR, AGED 53 YEARS, PARIJATHAM, P.O. MUNDERI, KANNUR TALUK, KANNUR DISTRICT). (POWER OF ATTORNEY ALLOWED AS PER ORDER IN I.A. NO.1072/2015 DATED 13/05/2015).

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BY ADVS.SRI.K.C.SANTHOSHKUMAR,

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SMT.K.K.CHANDRALEKHA.

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RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT NO.3:

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1. BALAKRISHNAN CHELORAKUNIYIL, S/O GOVINDAN NAMBIAR, AGED 55 YEARS , RESIDING AT SREE KRISHNA, P.O. CHELERI, KANNUR- 670 604.

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2. NALINI A.V., W/O GOPALAN, AGED 70 YEARS, ALAVOOR HOUSE, P.O. CHELERI, KANNUR - 670 604.

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R1 BY ADV. SRI.K.RAJESH SUKUMARAN.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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OP(C).No. 1665 of 2016 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1 TRUE COPY OF THE PLAINT BEARING O.S. NO.200/2015 FILED BEFORE THE ADDITIONAL MUNSIFF COURT, KANNUR. EXHIBIT P2 TRUE COPY OF THE COMMISSION REPORT AND SKETCH PLAN. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS. EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION BEARING I.A.NO.3270/2015. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 25.05.2015 AND MADE IN I.A.NO.3270/2015.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs. S

K.RAMAKRISHNAN, J.

=================== O.P.(C).No.1665 of 2016

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

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Dated this the 10^th day of August, 2016

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JUDGMENT

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The defendants 1 and 2 who are the petitioners in I.A 3270 of 2015 in O.S. 200 of 2015 on the file of Additional Munsiff's

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Court, Kannur filed this petition challenging the impugned Ext.P5 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 petitioners are defendants 1 and 2 in O.S. 200 of 2015 pending before the Additional Munsiff's Court, Kannur. The suit was filed by the 1^st respondent herein against the petitioners and 2^nd respondent herein claiming that he has got a right of way through plaint 'B' schedule property connecting plaint 'A' schedule and the nearby edavazhy and he acquired a right of easement by prescription. Along with a suit he filed a petition for appointment of a Commissioner, and the same was allowed and Commissioner inspected the property and submitted Ext.P2 report along with the sketch plan. The case of the petitioners was that there is no such way as claimed by the plaintiff through the property and he has got

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O.P.(C).No.1665 of 2016 -2-

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another pathway which is being used by him to reach his property. The existence of another pathway has not been mentioned in the report. Further, the descriptions of the pathway shown is also not proper which is not sufficient for the purpose of deciding the case as well. Further they filed O.S. No. 166 of 2016 against the plaintiff herein from trespassing the plaint property and interfering with the peaceful possession of the plaintiff and also use the property as their way to their property and the Commissioner in that suit had not found any pathway as claimed by the petitioners herein. So according to them, in order to ascertain the true facts, the commission report will have to be remitted for the purpose of ascertaining certain facts mentioned in the objection. The learned Munsiff after hearing both sides dismissed the application stating that whatever required has been mentioned in the commission report itself. Challenging the same the present petition has been filed.

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Heard Shri K.C. Santhosh Kumar learned Counsel appearing for the petitioners and Shri. K. Rajesh Kumar, learned counsel appearing for the 1^st respondent and 2^nd respondent remained absent.

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The Counsel for the petitioners submitted that the

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O.P.(C).No.1665 of 2016 -3-

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Commissioner has not even measured the width of the pathway, age of the pathway etc. which is required for the purpose of proper adjudication of the case. Further though existence of alternate pathway may not be a ground to deny the relief of easement by prescription, that may be required for the purpose of considering the question as to whether there is any possibility of the respondent using this disputed pathway to reach his property.

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On the other hand, the counsel for the 1^st respondent submitted that the court below had considered all these aspects and no illegality or impropriety has been committed by the court below as rejecting the prayer for remitting the Commissioner's report warranting interference under Article 227 of the Constitution of India.

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It is an admitted fact that 1^st respondent herein filed Ext.P1 suit as O.S.200 of 2015 against the petitioner and 2^nd respondent claiming a right of easement by prescription through plaint 'B' schedule pathway to his plaint 'A' schedule property. According to the petitioners, they filed O.S 166 of 2015 against the present respondents 1 and 2 and others for injunction restraining them from entering the property and when they came to know about the same, as a counter blast present suit has been filed. It

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O.P.(C).No.1665 of 2016 -4-

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is also an admitted fact that an ex parte commission was taken out by the plaintiff in O.S. 200 of 2015 and Ext.P2 report with a sketch plan has been submitted by the Commissioner as showing the existence of the alleged disputed B schedule pathway from the edavazhy to the property of the plaintiff. The existence of the this pathway is in dispute. Further, a reading of the Commissioner's report will go to show that he had not given the width of the pathway or necessary description of the alleged 'B' schedule pathway so as to grant a relief ultimately if the suit has to be decreed. Further the petitioners have a case that the plaintiff has another pathway to reach his property and there is no necessity to use the defendants property and the existence of such a pathway has not been mentioned in the Commissioner's report. It is true that existence of an alternate pathway is not a ground to deny the declaration of easement right of way by prescription. But that may be necessary for the purpose of considering the question as to whether there is a possibility for the plaintiff to use the disputed pathway at all to reach his property. So under such circumstances, the reasonings given by the court below for rejecting the application for remitting the commissioner's report is unsustainable in law and the same is liable to be set aside. So the petition is

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O.P.(C).No.1665 of 2016 -5-

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allowed and the impugned order Ext.P5 is set aside and I.A.32 70/2015 in O.S 200 of 2015 is allowed and the Ext.P2 commissioner's report and plan are remitted to the Commissioner for noting the things sought to be noted in the objections and in the petition filed by the petitioners and also the width of the alleged pathway and the description of the pathway as claimed in the petition is available on the ground or not and the existence of alternate pathway to reach the property of the plaintiff as claimed by the petitioners herein. The court below is directed to fix the remuneration payable to the Commissioner and same has to be paid by the petitioners herein.

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With the above directions and observations the petition is disposed of.

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Interim order granted is vacated. The office is directed to

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communicate this judgment to the court below at the earliest.

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K.RAMAKRISHNAN, JUDGE

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SKV

Vijayan Nambiar v. Balamrishnan Chelorakuniyil

Case brief

What is this about?

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Vijayan Nambiar v. Balamrishnan Chelorakuniyil

Case brief

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