Dismissed

K.Venugopal v. P.T.Uma

Kerala HC30 Aug 2016OP(C)/1933/2015

Case brief

AI extract

What is this about?

Petitioners challenged the Sub Judge's order dismissing their application to remit an Advocate Commissioner's report in a suit for possession. The Court held that since the lower court reserved the right to adduce evidence on objections, the petitioners are at liberty to do so, and the High Court can remitting the report later if necessary.

What did the court decide?

The petitioners are at liberty to adduce evidence on objections raised against the Commissioner's report; the interim order is vacated and the matter is remitted to the court below for appropriate ord

K.Venugopal Vs P.T.Uma — 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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TUESDAY, THE 30TH DAY OF AUGUST 2016/20168TH BHADRA, 1938

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OP(C).No. 1933 of 2015 (O)

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OS 868/2012 OF III ADDITIONAL SUB COURT, KOZHIKODE.

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PETITIONER(S)/DEFENDANTS:

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1. K.VENUGOPAL, AGED 55 YEARS, S/O.PADAMANABHAN, KONNAMKUZHI PARAMBIL HOUSE,

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MANNUR, KOZHIKODE-673328.

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2. N.RAJESH, S/O.NANU, AGED 33 YEARS, SANKARATH HOUSE, MANNUR, KOZHIKODE-673328.

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3. N.C.RAMADAS, AGED 52 YEARS, S/O.DAMODHARAN, THEKKEKORANGATTU, MANNUR, KOZHIKODE-673328.

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4. P.MOHANDAS, S/O.APPU NAIR, PAZHERI HOUSE, KADALUNDI, KOZHIKODE-673302.

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5. P.GANGADHARAN, AGED 58 YEARS, SOPANAM, MANNUR VALAVU, MANNUR, KOZHIKODE-673328.

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BY ADVS.SMT.SHAHNA KARTHIKEYAN SMT.C.K.LEKHAMMA

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RESPONDENT(S)/PLAINTIFF:

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1. P.T.UMA, D/O.DR.P.T.K.NAMBISSAN,71 YEARS, T 68 KOVAIPUTHOOR KIRUVANI NAGAR, MADUKARAI, COIMBATORE, TAMILNADU-641105.

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2. P.T.GOWRI, 63 YEARS, D/O.DR.P.T.K.NAMBISSAN, PUZHAKAL PAPPATH HOUSE, PUZHAKAL P.O., THRISSUR-680553.

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3. P.T.REMA, 55 YEARS, D/O.DR.P.T.K.NAMBISSAN, 9C, KRISHNA ISLAND APARTMENTS, POONKUNNAM, THRISSUR-680002.

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--2--

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--2--

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OP(C).No. 1933 of 2015 (O)

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4. P.T.PADMA, 53 YEARS, D/O.DR.T.P.NEELAKANDAN NAMBISSAN, SREEBHAVAN, BALUSSERY, KOZHIKODE, ISLAND APARTMENTS, POONKUNNAM, THRISSUR-680002.

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5. MALATHY N NAMBISSAN, 33 YEARS, S/O.P.T.NEELAKANDAN NAMBISSAN, OMKARA PHARMACY, ETTINGAD, INDIRA NAGAR, MYSORE-570010.

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6. DR.P.T.KESAVAN, 33 YEARS, S/O.P.T.NEELAKANDAN NAMBISSAN, COIMBATORE ARYAVYDHYA PHARMACY, RAMANATHAPURAM, COIMBATORE-641045.

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R1, R4 & R6 BY ADV. SRI.SRINATH GIRISH R2, R3 & R5 BY ADV. SMT.V.NAMITHA

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 1933 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT-P1:	TRUE COPY OF THE PLAINT IN O.S.NO.868/2012.
EXHIBIT-P2:	TRUE COPY OF THE WRITTEN STATEMENT FILED BY PETITIONERS IN O.S.NO.868/2012.
EXHIBIT-P3:	TRUE COPY OF THE ORDER ACCEPTING WRITTEN STATEMENT.
EXHIBIT-P4:	TRUE COPY OF I.A.NO.2514/14 FOR APPOINTING COMMISSIONER.
EXHIBIT-P5:	TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER WITH SKETCH.
EXHIBIT-P6:	TRUE COPY OF THE I.A.2514/14 TO REMIT REPORT AND PLAN.
EXHIBIT-P7:	TRUE COPY OF THE OBJECTION TO I.A.NO.2514/14.
EXHIBIT-P8:	TRUE COPY OF THE ORDER DATED 4.8.14 PASSED IN I.A.NO.2514/14.
EXHIBIT-P9:	TRUE COPY OF THE APPLICATION SUBMITTED FOR OBTAINING CERTIFIED COPY OF I.A.NO.2514/14.
EXHIBIT-P10:	TRUE COPY OF THE AFFIDAVIT WITH PETITION FOR SETTING AIDE EX-PARTE ORDER.
EXHIBIT-P11:	TRUE COPY OF OBJECTION TO PETITION TO SET ASIDE EX-PARTE ORDER.
RESPONDENT(S)' --------------	EXHIBITS: NIL ---------

//TRUE COPY//

P.S. TO JUDGE

mbr/

K.RAMAKRISHNAN, J.

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O.P(C) No.1933 of 2015

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========================== Dated this the 30^th day of August, 2016

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JUDGMENT

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This is a petition filed by the petitioners challenging Ext.P8 order passed by the court below dismissing the application for remitting the Commissioner's report under Article 227 of the Constitution of India.

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It is alleged in the petition that respondents 1 to 6 filed Ext.P1 suit for recovery of possession of plaint schedule property on the strength of their title with future mesne profits at the rate of Rs.20,000/- per mensum from the date of suit till delivery. The defendants, filed Ext.P2 written statement contending that the petitioners have no right over the plaint schedule property and that, as entrusted by the family members to whom the temple in the property belongs, they are managing the administration of the temple and that the plaintiff is not entitled to get any relief. Ext.P2 written statement was received by Ext.P3 order. On the

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strength of the application filed by the plaintiffs as Ext.P4, a Commissioner was appointed and the Commissioner filed Ext.P5

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O.P.(C) No.1933 of 2015

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Page numbers

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report. The petitioners filed Ext.P6 application to remit the Commissioner's report. The respondents herein filed Ext.P7 objection to the same. Learned Sub Judge by Ext.P8 order dismissed the application. Aggrieved by the same, the present petition has been filed.

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Heard Smt.Shahna Karthikeyan, counsel appearing for the petitioners and Sri. Sreenath Girish, counsel appearing for the respondents.

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Counsel for the petitioner submitted that the suit was filed without impleading the original owners of the property. Subsequently, they have filed application to get themselves impleaded. But, because of the stay order passed by this court, that application is still pending. Further, the Commissioner's report is not helpful to prove the case of the plaintiffs. That was reason why they wanted the remission of the Commissioner's report.

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On the other hand, counsel for the respondents submitted that court below had protected the interest of the petitioner as the burden is on the plaintiff to prove their title to the property and if it is not proved, they are likely to lose their case. Further, right to adduce evidence at the time of trial on the

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O.P.(C) No.1933 of 2015

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Page numbers

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basis of objection has been reserved in the order.

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It is an admitted fact that the respondents herein filed

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Ext.P1 suit for recovery of possession on the strength of title deed and recovery of the mesne profits from the defendants who are the petitioners herein. The defendants are not claiming any right as such in the property but they are only claiming that they are managing the affairs of the temple as entrusted by the real owners of the property and the plaintiffs have no right or title over the plaint schedule property. A commission was taken out and the Commissioner, with the help of a Surveyor, had submitted Ext.P5 report with the sketch. The petitioners filed Ext.P6 application stating that the Commissioner has not properly identified the property and the survey number in the plaint as well as the survey number shown by the Commissioner in respect of the plaint schedule property are different. If the Commissioner's report is not remitted, it will cause hardships. Further, now they have produced a document in the suit with a different survey number, so they are likely to rely on that survey number to identify the property. The court below dismissed the application with following observation.

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O.P.(C) No.1933 of 2015

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Page numbers

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“Concededly suit is one for recovery of possession of the plaint schedule property on the strength of title. An advocate Commissioner was appointed at the instance of the plaintiff and he filed a report and plan. Present application has been filed to remit the said report and plan alleging that Commissioner has not identified the suit property properly.

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The request of the petitioners cannot be acceded for reasons more than one. Firstly, application is highly belated. The present application has been filed when the suit was in the published list. Secondly burden is on the plaintiff to establish the identity of the suit property. In a suit for ejectment burden is on the plaintiff to proof the identity of the suit property. Hence I am of the view that further enquiry is not necessary in this matter.

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However considering the entire aspects on record I am of the view that objections to the report can be recorded and petitioner can be allowed to adduce evidence regarding the objections. It is made clear that if in evidence petitioners succeed in proving that further enquiry is necessary for elucidating the matter in dispute order in this application will not be bar in allowing this application.”

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O.P.(C) No.1933 of 2015

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Page numbers

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It is seen from the order that if the plaintiffs have not properly identified the property and if they are not able to prove their title, they are likely to lose the case as the burden is on them to prove the same. Further, in the order, it has been specifically mentioned that the right to adduce evidence on the basis of objection to the Commissioner's report has been reserved in favour of the petitioners as well. If the court feels that the Commissioner's report is not helpful to adjudicate the matter, court has got power either to set aside or remit the Commissioner's report calling for a fresh report and plan with direction to note particulars required for proper disposal of the case. Since the right of the petitioner to adduce evidence on the basis of the objections regarding the identity of the property has been reserved, no prejudice will be caused to the petitioners by dismissing the application by the court below. So, petitioners are at liberty to adduce evidence on the basis of the objections and if the court feels that on the basis of the objections the Commissioner's report is not helpful to adjudicate the case properly or the Commissioner's report and plan are useless to decide the case, then, court is at liberty to consider those aspects and pass appropriate orders at the relevant time on the basis of

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O.P.(C) No.1933 of 2015

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Page numbers

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the evidence adduced on this aspect.

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Counsel for the petitioner submitted that the real owners

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have already filed an application to implead themselves and that petition can also be considered by the court below. If any application has been filed by any third party to get themselves impleaded in the suit, it is for that court to consider and pass appropriate orders in the application.

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With the above direction and observation this petition is disposed of. Interim order granted by this Court is vacated. Registry is directed to communicate this judgment to the court below immediately.

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Sd/-

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K.RAMAKRISHNAN, JUDGE

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vdv/02/09/16

K.Venugopal v. P.T.Uma

Case brief

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K.Venugopal v. P.T.Uma

Case brief

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