Dismissed

Cr Syam Mohan v. Sudhakumary

Kerala HC6 Sept 2016OP(C)/1689/2016

Case brief

AI extract

What is this about?

Criminal Syam Mohan filed a writ petition under Article 227 challenging the Munsiff Court’s dismissal of his petitions to set aside and remit a commissioner’s report in a civil title suit, arguing the survey was incomplete and he was attempting to protract proceedings.

What did the court decide?

Liberty granted to defendant to adduce evidence regarding defects in the commissioner’s report at the trial stage, with the trial court free to pass appropriate orders based on evidence if the report

Cr Syam Mohan Vs Sudhakumary — Civil Procedure and Limitation | 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 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938

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OP(C).No. 1689 of 2016 (O)

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OS.NO.388/2008 OF MUNSIFF COURT, KOTTARAKARA

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PETITIONER(S)/DEFENDANT NO.2:

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CR SYAM MOHAN, S/O LATE CHELLAPPAN PILLAI, 40 YEARS, VAZHAPALLY PUTEHN VEEDU,PERUMKULAM, KALAYAPURAM VILLAGE, KOLLAM.

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BY ADV. SRI.SYAM J SAM

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RESPONDENT(S)/PLAINTIFFS.:

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1. SUDHAKUMARY, SREE NILAYAM, VILLOOR, VETTIKAVALA, KOTTARAKARA, KOLLAM-691001.

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2. RAVEENDRAN PILLAI, SREE NILAYAM, VILLOOR, VETTIKAVALA, KOTTARAKARA, KOLLAM-691004.

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R1 BY ADV. SRI.K.V.ANIL KUMAR

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 1689 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 THE TRUE COPY OF THE COMMISSIONER REPORT FILED IN OS 388/2008 IN THE FILE OF THE MUNSIFF, KOTTARAKARA. EXHIBIT P2 TRUE COPY OF THE ORDER OF MUNSIFF KOTTARAKARA IN IA 3102/2012. EXHIBIT P3 TRUE COPY OF THE PETITION IN IA 565/2015 BEFORE MUNSIFF KOTTARAKARA. EXHIBIT P4 TRUE COPY OF THE ORDER OF MUNISIFF KOTTARAKARA IN IA 565/2015.

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RESPONDENT(S)' EXHIBITS

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NIL. / TRUE COPY / P.S. TO JUDGE

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K. RAMAKRISHNAN, J.

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O.P.(C).No.1689 of 2016

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....................................................... Dated this the 6^th day of September, 2016.

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JUDGMENT

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This petition is filed by the petitioner challenging Exts.P1 and P3 orders passed by the Munsiff in OS.No.388/2008 of Munsiff

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Court, Kottarakkara under Article 227 of the Constitution of India.

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It is alleged in the petition that the first respondent herein filed OS.No.388/2008 before the Munsiff Court, Kottarakkara for declaration of title over the plaint schedule property on the basis of sale deed No.1914/96 and for consequential reliefs. According to the defendants, they are in possession of excess area than the extent shown in the sale deed in their favour and the plaintiffs are also in possession of more land and they are now claiming right over the property in the possession of the defendants. The petitioner and other defendants filed OS.No.1/2015 before the Sub Court, Karunagappally for declaration of their right over the property. Earlier a commission was taken out and Ext.P1 interim report was filed by the commissioner. The petitioner filed IA.No.3102/2012 in OS.No.388/2008 to set aside the commissioner’s report stating that certain things were not noted by the commissioner and those things are required for the purpose of proper adjudication. According to them, the surveyor has not properly conducted the survey and located the property and they have not identified the property on the basis of the document and

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O.P.(C).No.1689 of 2016

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the property was not located on the basis of the old survey plan and the sale deed and the boundaries were not properly located. After hearing both sides and also examining the commissioner and the surveyor as Cws 1 and 2 and marking Exts.C1 to C3, court below dismissed the application as per Ext.P2 order. Thereafter the petitioner again filed Ext.P3 application for remitting the commissioner's report stating the same reasons and that was dismissed by the court below by Ext.P4 order. These orders are being challenged by the petitioner by filing this petition.

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Heard Sri.Syam J. Sam, learned counsel appearing for the petitioner and Sri. K.V. Anil Kumar, learned counsel appearing for the respondents.

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Learned counsel appearing for the petitioner submitted that identification of the property on the basis of the survey is required for the purpose of proper adjudication of the case. That was the reason why the petitioner had filed an application for remitting the commission's report, though earlier the application to set aside the commissioner's report was dismissed by the court below. The reason stated by the court below for dismissal of both the applications is not proper. So he prayed for allowing the application.

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On the other hand, learned counsel appearing for the respondents submitted that earlier the petitioner had filed an

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O.P.(C).No.1689 of 2016

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application to set aside the commissioner's report and that was dismissed by the court below by Ext.P2 order. That was not challenged, but when the case was listed in the trial, the present petition is filed with a view to protract the proceedings. So the court below was perfectly justified in dismissing the application.

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It is an admitted fact that the respondents herein filed OS.No.388/2008 before the Munsiff Court, Kottarakkara for declaration of title and consequential reliefs in respect of the plaint schedule property. The case of the defendants in the court below including the present petitioner, who is the second defendant, was that the respondent is in possession of excess land than the extent shown in the document and he is now trying to grab some portion of the property in the possession of the defendants. They also filed another suit as OS.No.1/2015 before the Sub Court, Karunagappally for declaration of their right in the property.

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It is an admitted fact that a commission was taken out earlier and the commissioner filed Ext.P1 interim report and thereafter with the help of the surveyor, measured the property and then submitted a report with plan before the court below and dissatisfied with the commissioner's report, the petitioner filed IA.No.3102/2012 to set aside the commissioner’s report and that was dismissed by the court below as per Ext.P2 order dated 5^th December, 2014, but that order was not challenged by the

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O.P.(C).No.1689 of 2016

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petitioner. Thereafter the petitioner again filed Ext.P3 petition as IA.565/2015 to survey the property with the help of the surveyor stating the same reasons mentioned by him in the earlier application for setting aside the commissioner's report namely IA.No.3102/2012.

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In the earlier application, the commissioner and the surveyor was examined as CWs 1 and 2 and Exts.C1 to C3, the commissioner’s report and plan were marked and after consideration of the evidence, the court below came to the conclusion that there is no necessity to set aside the commissioner’s report. It is thereafter that, in the year 2015, again the petitioner filed Ext.P3 application for taking out a fresh commission with the help of the surveyor, stating the same reasons stated by him in the earlier application to set aside the commissioner’s report and that was dismissed by the court below by Ext.P5 order, that is being challenged by the petitioner by filing this petition.

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It is seen from Ext.P5 order that, the petitioner earlier filed I.A.3543/2009 for taking out a fresh survey commission and the plaintiff also filed I.A.1444/2009 for the same purpose and both these applications were allowed by the court below and it is on that basis, the commissioner was appointed with the help of the surveyor. The commissioner had submitted Exts.C1 to C3 plan and report, which were marked in Ext.P2. Dissatisfied with the above

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O.P.(C).No.1689 of 2016 5

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report and plan the same petitioner filed I.A.3102/2012 to set aside the commissioner’s report and in that, the commissioner was examined as CW1 and the joint commissioner namely the surveyor was examined as CW2 and the commissioner’s report and plan were marked as Exts.C1 to C3. After considering the objections and evidence elaborately, the court below came to the conclusion that there is no ground made out to set aside the commissioner's report and dismissed the application, but that order was not challenged. It is also seen from the order that, the property was not measured on the basis of the old survey number. It is seen from the commissioner’s order that the old survey plan was not produced before the commissioner. Even along with the petition to the appointment of fresh commissioner, that document was not produced. So under such circumstances, the court below had come to the conclusion that the attempt of the petitioner is only to protract the matter and nothing more. Since the suit is of the year 2008, the court below wanted to proceed with the case with the available evidence.

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When the document on the basis of which the petitioner wants to measure the property has not been produced either at the time when the commissioner earlier inspected the property or at the time when the second application for the same purpose was filed by the petitioner, the court below was perfectly justified in dismissing

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O.P.(C).No.1689 of 2016

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the application for appointing a fresh commissioner, especially when the earlier commissioner’s report was accepted after evidence taken in the application to set aside the commissioner’s report.

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So under such circumstances, there is no illegality committed by the court below in dismissing the application. But however the right of the defendant to adduce evidence regarding the defect in the commissioner’s report at the time of trial is left open. If on the basis of the evidence adduced by the defendant regarding the defect in the commissioner's report and the court below is satisfied that the commissioner's report is not helpful for proper disposal of the case or some more materials will have to be collected for adjudicating the dispute between the parties effectively, then court below is at liberty to consider that evidence and pass appropriate orders at that time, in accordance with law. With the above liberty given to the petitioner to adduce evidence at the time of trial on the basis of the objection and consideration of the same by the court below and passing appropriate orders, this petition is dismissed.

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Registry is directed to communicate this order to the concerned court, immediately.

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Sd/-

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(K. Ramakrishnan, Judge)

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cl/ss

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O.P.(C).No.1689 of 2016 7

Cr Syam Mohan v. Sudhakumary

Case brief

What is this about?

What did the court decide?

Cr Syam Mohan v. Sudhakumary

Case brief

What is this about?

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