Dismissed

V.P.Vasu v. Kandacheri Sarojini

Kerala HC6 Aug 2016OP(C)/1902/2016

Case brief

AI extract

What is this about?

In this Article 226 petition, the petitioner challenged the dismissal of his application seeking examination of a Commissioner due to alleged discrepancies in a property boundary decree. The Court held that once a decree becomes final, the execution court cannot go behind it to fix a new boundary, directing the lower court to comply with prior judgments.

What did the court decide?

The petition was dismissed, directing the execution court to comply with previous orders and fix the boundary as per the decree appointing a Commissioner with a surveyor.

V.P.Vasu Vs Kandacheri Sarojini — Execution and Attachment | 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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SATURDAY, THE 6TH DAY OF AUGUST 2016/15TH SRAVANA, 1938

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OP(C).No. 1902 of 2016 (O)

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--------------------------OS.429/2011 OF MUNSIFF COURT, KANNUR.

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PETITIONER:

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V.P.VASU, S/O.KESAVAN ACHARY, AGED 72 YEARS, PENSIONER, MELEDATH, VALIYAPURAYIL, KADAMBUR AMSOM & DESOM, EDAKKAD.P.O., KANNUR DISTRICT.

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BY ADV. SRI.V.P.VASU (APRTY-IN-PERSON)

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RESPONDENT(S):

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1. KANDACHERI SAROJINI, D/O.KANDACHERI NANI, AGED 52 YEARS, PACHAPOYIL HOUSE, KADAMBUR AMSOM & DESOM, EDAKKAD.P.O., KANNUR DISTRICT.

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2. K.C.SUJAN, S/O.LATE K.C.OMANA, AGED 30 YEARS, PACHAPOYIL HOUSE, EDAKKAD.P.O.

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3. K.MOHANAN, AGED 62 YEARS, KORAPARATH HOUSE, KADAMBUR AMSOM & DESOM, EDAKKAD.P.O.

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4. AMBALATHIL MADHAVI, AGED 81 YEARS, KORAPARATH HOUSE, KADAMBUR AMSOM & DESOM, EDAKKAD.P.O.

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5. P.UTHAMAN, PADMALAYAM, KANNAPURAM, CHERAKU KANNUR DISTRICT.

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6. HAV.MOHANAN.K.S., S/O.KUNJIRAMAN NAIR,

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AGED 60 YEARS, PACHAPOYIL HOUSE, KADAMBUR AMSOM & DESOM, EDAKKAD.P.O., KANNUR DISTRICT.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 1902 of 2016 (O)

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APPENDIX

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PETITIONERS’ EXHIBITS:

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EXT. P1	: A TRUE COPY OF THE DECREE DATED 13.2.2012 IN O.S.429/2011 ON THE FILE OF THE MUNSIFF COURT, KANNUR & C1 PLAN.
EXT. P2	: A TRUE COPY OF THE DECREE DATED 4.9.2013 IN RSA NO.1138/2013 OF THIS HON'BLE COURT.
EXT. P3	: A TRUE COPY OF THE COMMISSION REPORT DATED 29.8.2014.
EXT. P4	: A TRUE COPY OF THE JUDGMENT DATED 19.12.2015 IN OS.NO.226/2015 OF THE MUNSIFF COURT, KANNUR.
EXT. P5	: A TRUE COPY OF THE DECREE DATED 19.12.2015 IN OS.NO.226/2015 OF THE MUNSIFF COURT, KANNUR.
EXT. P6	: A TRUE COPY OF THE JUDGMENT DATED 19.12.2015 IN OP(C).NO.674/2014 OF THIS HON'BLE COURT.
EXT. P7	: A TRUE COPY OF THE MEMO DATED 12.3.2010 OF THE ADVOCATE COMMISSIONER.
EXT. P8	: A TRUE COPY OF THE JUDGMENT DATED 26.10.2015 IN O.P(C) NO.396/2015 OF THIS HON'BLE COURT.
EXT. P9	: A TRUE COPY OF THE ORDER DATED 8.12.2015 IN R.P.1125/2015 OF THIS HON'BLE COURT.
EXT. P10	: A TRUE COPY OF THE ORDER DATED 7.6.2016 IN E.A.140 OF 2016 IN E.P.NO.309/2013 IN THE MUNSIFF’S COURT, THALASSERY.
EXT. P11	: A TRUE COPY OF THE SUIT SUMMONS DATED 10.2.2014 IN OS.NO.65/2014 OF THE MUNSIFF’S COURT, THALASSERY.
EXT. P12	: A TRUE COPY OF THE JUDGMENT DATED 16.3.2013 IN AS.NO.378/2012 OF THE SUB COURT, KANNUR.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

K. Ramakrishnan, J.

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============================== O.P.(C)No.1902 of 2016

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============================== Dated this, the 06^th day of August 2016.

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J U D G M E N T

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1.This is a petition filed by the petitioner challenging Ext.P10 order passed by the court below under Article 227 of Constitution of India.

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2.It is alleged in the petition that the petitioner is a decree holder in O.S.No.429/2011 on the file of the Munsiff Court, Kanuur and that suit was filed for fixation of boundary of the plaint schedule property having an extent of 8.09 ares in Resurvey No.50/4 of Kadamboore village with other reliefs. The suit was decreed as per Ext.P1 decree. Though an appeal was filed, the same was dismissed as per Ext.P12 judgment in A.S.No.378/2012 of Sub Court, Kannur and the same was confirmed by this Court as per Ext.P2 decree in RSA No.1138/2013. Thereafter, the 2^nd respondent herein filed O.S.No.65/2014 before Munsiff Court, Thalassery which was later transferred to Munsiff Court, Kannur

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O.P.(C)No.1902 of 2016 : 2 :

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where it was re-numbered as O.S.No.226/2015 in respect of the same property evidenced by Exts.P4 and P5. and that was dismissed later. Thereafter, he filed Execution Petition as E.P.No.309/2013 for permitting him to construct a compound wall along with the boundary fixed. Since he was not satisfied with the manner in which the Commissioner has measured the property, he filed E.A.No.140/2016 for examination of the Commissioner in the case and that was dismissed as per Ext.P10 order which is under challenge.

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3.The petitioner represented himself in person.

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4.Heard the petitioner. According to him, there was some discrepancies in the Commissioner's report and plan and certain property in his possession has been wrongly shown in the possession of the defendants. According to him, it is a collusive affair between the defendants and the Surveyor and the Commissioner. In order to clarify the same, it is necessary to examine the Commissioner.

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It may be mentioned here that the petitioner himself has filed O.S.No.429/2011 before the Munsiff Court,

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O.P.(C)No.1902 of 2016 : 3 :

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Thalassery, for fixation of boundary of his property and accordingly, a Commission was taken out and Commissioner filed report and plan fixing the boundary of the property and the suit was decreed accepting the Commissioner's plan which was appended to the decree which is evident from Ext.P1 decree passed in O.S.No.429/2011 on the file of the Munsiff Court, Kannur as it is seen that this case was later transferred to Munsiff Court, Kannur. It is also seen as per Ext.P12 judgment that this was challenged by the defeated defendants before the Sub Court, Kannur as A.S.378/2012 in which the petitioner is also a party as 1^st respondent and after elaborate consideration, accepting the lower court findings, the appeal was dismissed. Thereafter, they filed the second appeal before this Court as RSA.No.1138/2013 and that was also dismissed evidenced by Ext.P2 decree of this Court.

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When the Execution Petition was not disposed of by the court, he filed O.P.(C).No.674/2014 before this Court and this Court directed the Munsiff, Thalassery where the Execution Petition is pending to expedite the same

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O.P.(C)No.1902 of 2016 : 4 :

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immediately within three months. Earlier the E.P. was dismissed as no steps taken, against which he filed O.P.No.674/2014, that was disposed of by this Court as per Ext.P6 judgment directing Execution Court to dispose of the E.P.in accordance with law.

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7.Again, he filed two applications which were disposed of by Execution Court as per Exts.P8 and P9 orders. He filed O.P.(C).No.396/2015 before this Court and that was disposed of by this Court as per Ext.P8 judgment setting aside the orders passed in Exts.P5 and P8 and directed the Munsiff to appoint a surveyor to assist the commissioner to identify the boundary line marked in the plan attached to the decree and the petitioner was allowed to put up the boundary mark along with the boundary line so identified. It is also mentioned in the order that the decree for mandatory injunction shall be executed in the presence of the commissioner after the boundary lines are identified by the commissioner with the assistance of the surveyor after getting approval from the court. It is also made clear in the judgment that if there is an already boundary mark like fence or

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O.P.(C)No.1902 of 2016 : 5 :

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wall, the execution court shall not allow the petitioner to put up any other boundary mark. Thereafter, he filed R.P.No.1125/2015 to review the same and by Ext.P9 order, this Court dismissed the petition stating that what is meant that if there is already a boundary mark, the new boundary need not be put up to the effect that

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if there is already a boundary mark along with the boundary line fixed by the decree, it is not necessary to allow him to put up any other boundary mark. With that clarification, that petition was also dismissed.

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8.It is thereafter, that the petitioner filed E.A.No.140/2016 before the court below stating that there was some discrepancy in the Commissioner's report and plan which was accepted and a decree was passed. For that purpose, the Commissioner will have to be examined. The court below, after detailed discussion, dismissed the application. Once a decree has become final, then, the Execution Court cannot go behind the decree and the Execution Court can only fix the boundary on the basis of the boundary line fixed by

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the Commissioner. This was specifically mentioned in

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O.P.(C)No.1902 of 2016 : 6 :

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two other proceedings of this Court itself in Exts.P8 and P9 and also Ext.P6 judgment of this Court. So, the petitioner cannot now go behind the decree and want a new boundary line to be fixed as he likes as the boundary line of the property. So, the petition is without any merit and the same is dismissed directing the Execution Court to comply with the directions made in O.P.(C).No.396/2015 clarified in R.P.No.1125/2015 in O.P.(C) No.396/2015 and fix the boundary as per Ext.P1 decree appointing a Commissioner with the help of surveyor and complete the execution process as directed in the decree as expeditiously as possible.

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With the above observation, the petition is dismissed.

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Registry is directed to communicate this judgment to the court below at the earliest.

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Sd/- K.Ramakrishnan, Judge.

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[True copy]

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P.A to Judge

V.P.Vasu v. Kandacheri Sarojini

Case brief

What is this about?

What did the court decide?

V.P.Vasu v. Kandacheri Sarojini

Case brief

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What did the court decide?

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