Remanded

Anil Kumar v. Punnoli Puthanpurayil Naseema

Kerala HC29 Nov 2016OP(C)/2332/2016

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the Kerala High Court set aside a non-speaking order by the Munsiff Court in an execution petition regarding a compound wall dispute, remanding the matter for fresh disposal to consider objections to a commissioner's report.

What did the court decide?

The impugned order is set aside and the matter is remitted to the court below for fresh disposal considering the petitioner's objections.

Anil Kumar Vs Punnoli Puthanpurayil Naseema — 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 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938

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OP(C).No. 2332 of 2016 (O)

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--------------------------E.A.64/2016 AND EP.31/2016 IN O.S. NO.44/2013 OF MUNSIFF COURT, VADAKARA.

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PETITIONERS/PETITIONERS/PLAINTIFFS:

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1. ANIL KUMAR, S/O.KUNHIRAMAN, AGED 39 YEARS, PARAMBATH HOUSE, AZHIYOOR AMSOM, CHEMBOLA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,

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2. PAVITHRAN, S/O.GOPALAN, AGED 50 YEARS, KUNHI MANIKOTH, AZHIYOOR AMSOM, CHEMBOLA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,

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BY ADV. SRI.P.V.JYOTHI PRASAD.

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. PUNNOLI PUTHANPURAYIL NASEEMA, D/O.AHAMMED, AGED 55 YEARS, 'SABNAM' CHALUPARAMBATH HOUSE, AZHIYOOR AMSOM, CHEMBOLA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 309.

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2. NADEERA, D/O.NASEEMA, AGED 35 YEARS, 'SABNAM' CHALUPARAMBATH HOUSE, AZHIYOOR AMSOM, CHEMBOLA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 309.

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3. SHABNA, D/O.NASEEMA, AGED 33 YEARS, 'SABNAM' CHALUPARAMBATH HOUSE, AZHIYOOR AMSOM, CHEMBOLA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 309.

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OP(C).No. 2332 of 2016 (O)

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4. ABDUL SAMAD, S/O.NASEEMA, AGED 31 YEARS, 'SABNAM' CHALUPARAMBATH HOUSE, AZHIYOOR AMSOM, CHEMBOLA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 309.

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5. IBRAHIM KHALEEL, S/O.NASEEMA, AGED 29 YEARS, 'SABNAM' CHALUPARAMBATH HOUSE, AZHIYOOR AMSOM, CHEMBOLA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 309.

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6. UMMU HABEEBA, D/O. NASEEMA, AGED 26 YEARS, 'SABNAM' CHALUPARAMBATH HOUSE, AZHIYOOR AMSOM, CHEMBOLA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 309.

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7. ABDUL MUNASH, S/O.NASEEMA , AGED 24 YEARS, 'SABNAM' CHALUPARAMBATH HOUSE, AZHIYOOR AMSOM, CHEMBOLA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 309.

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8. AZHIYOOR GRAMA PANCHAYATH, REPRESENTED ITS SECRETARY, AZHIYOOR-673 309, VADAKARA TALUK, KOZHIKODE DISTRICT.

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R8 BY ADVS. SRI.C.VATHSALAN, SRI.K.RAKESH ROSHAN, SMT.THUSHARA.V.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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OP(C).No. 2332 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 COPY OF THE PLAN AND REPORT OF THE ADVOCATE COMMISSIONER DTD 23/05/2013.

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EXHIBIT P2 TRUE COPY OF THE PROPOSED COMPOUND WALL APPROVED BY THE AZHIYUR GRAMA PANCHAYATH.

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EXHIBIT P3 TRUE COPY OF THE JUDGMENT DTD 30/10/2013 IN OS.44/2013 ON THE FILES OF MUNSIFF COURT, VADAKARA.

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EXHIBIT P4 TRUE COPY OF THE PLAN AND REPORT OF THE ADVOCATE COMMISSIONER DTD 14/02/2014.

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EXHIBIT P5 TRUE COPY OF THE COMMISSION REPORT DTD 07/07/2016 OF THE ADVOCATE COMMISSIONER.

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EXHIBIT P6 TRUE COPY OF THE OBJECTION DTD 01/08/2016 FILED BY THE PETITIONERS TO THE COMMISSION REPORT.

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EXHIBIT P7 TRUE COPY OF THE ORDER DTD 01/08/2016 IN EP NO.31/2016 IN OS NO. 44/2013 ON THE FILE OF THE COURT OF THE MUNSIFF VADAKARA.

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EXHIBIT P7(A) TRUE COPY OF THE ORDER DTD 01/08/2016 IN EA NO.64/2016 IN OS NO 44/2013 ON THE FILE OF THE COURT OF THE MUNSIFF VADAKARA.

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EXHIBIT P8 TRUE COPY OF THE ORDER DTD 31/12/2014 OF THE SECRETARY AZHIYOOR GRAMA PANCHAYATH.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K.RAMAKRISHNAN, J.

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O.P.(C)No.2332 of 2016

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Dated this the 29^th day of November, 2016

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JUDGMENT

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This petition has been filed by the petitioner challenging Ext.P7 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 the petitioners as plaintiffs filed O.S.44/2013 before the Munsiff Court, Vadakara against respondents 1 to 7 for permanent prohibitory injunction restraining them from constructing a compound wall in violation of the approved plan issued by the 8^th respondent panchayath herein. Ext.P2 produced herein is the approved plan issued by Azhiyoor panchayath to first respondent for construction of the compound wall along the boundary of their property. In the suit a commission was taken out and commissioner filed Ext.P1 plan and report showing the nature of construction made by the respondent. After evidence, the suit was decreed evidenced by Ext.P3 judgment whereby the Munisff Court, Vadakara had granted an interim injunction directing the defendants and their men shall not construct a boundary wall to their property without leaving 45 cms from the lain in existence as per Ext.B1 plan, this order was not challenged. When it was attempted to be violated, the petitioners filed E.P.13/2014 for violation and take action against

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O.P.(C)No.2332 of 2016

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respondents 1 to 7 for violating the injunction decree passed and constructing the compound wall and the commissioner inspected the property and submitted Exts.P4 and P5 reports. The petitioners filed Ext.P6 objection to the commissioner's report stating that the Advocate Commissioner had not properly supervised the construction of the compound wall and the compound wall is not constructed in tune with Ext.B1 plan produced and marked in the suit. The said Nazima filed E.A.64/2016 to record satisfaction alleging that the compound wall was constructed as per the directions of the decree and the court below recorded satisfaction and closed E.A.64/2016 and closed the execution petition also, stating that the purpose of the E.P.has been completed. This is being challenged by the petitioner.

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Though notice was served on respondents 1 to 7, they did not appear. 8^th respondent alone appeared represented by their standing counsel Sri.C.Vathsalan and Rakesh Roshan.

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Heard Sri.P.V.Jyothi Prasad, counsel appearing for the petitioner and Sri.Rakesh Roshan representing Sri.C.Vathsalan, counsel appearing for the 8^th respondent.

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The counsel for the petitioner submitted that, the court below has not properly appreciated the purport of the decree. In fact

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O.P.(C)No.2332 of 2016

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the compound wall constructed was not in tune with Ext.P2 approved plan issued by the panchayath which was produced and marked as Ext.B1 and the trial court granted the decree on the basis of Ext.B1 directing the respondents not to construct the compound wall except leaving 45 cms from the lane as provided in Ext.B1 plan approved by the panchayath. When the defendant attempted to violate that order, the petitioner filed execution for enforcement for constructing the compound wall as per Ext.B1 and the commissioner inspected the property and when the respondents submitted that she had already completed the construction of the compound wall, the commissioner reported that fact that the compound wall has been constructed, but did not mention as to whether it is in tune with Ext.B1 approved plan. The petitioners filed detailed objection to the commissioner's report, but the court below did not consider that objection at all and passed a non-speaking order ignoring the objection filed by the petitioner and closed the execution petition and also recoded satisfaction, which appears to be unsustainable in law. When the parties have filed objection to the commissioner's report, there is a duty cast on the court to look into those objections and apply mind as to whether the objections are sustainable and answer the same and thereafter pass

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O.P.(C)No.2332 of 2016

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appropriate orders in the matter which has not been done in this case. So under such circumstances, this court feels that the order passed by the court below is liable to be set aside as it is a non-speaking order and the same is set aside and the matter is remitted to the court below for fresh disposal in accordance with law.

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The Munsiff, Vadakara is directed to consider the objections filed by the petitioner to the commissioner's plan and report and also the action taken by the panchayath for construction of the compound wall by the defendants not in tune with Ext.B1 plan and then pass appropriate orders in the execution petition in accordance with law.

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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

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Anil Kumar v. Punnoli Puthanpurayil Naseema

Case brief

What is this about?

What did the court decide?

Anil Kumar v. Punnoli Puthanpurayil Naseema

Case brief

What is this about?

What did the court decide?

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