Dismissed

Abraham Ninan v. P.V. Kurian

Kerala HC21 Oct 2016OP(C)/2579/2016

Case brief

AI extract

What is this about?

This court dismissed the appeal filed by the petitioner challenging the lower court's order staying proceedings under Section 10 CPC of the Code of Civil Procedure. The court held that a joint trial was unnecessary as the prior suits on the same boundary dispute had already been remanded for fresh disposal, making the subsequent suit redundant.

What did the court decide?

Petition dismissed as in limine; Registry directed to communicate judgment to the court below.

Abraham Ninan Vs P.V. Kurian — 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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FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938

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OP(C).No. 2579 of 2016 (O)

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OS.220/2009 & OS 318/2009 OF MUNSIFF COURT, CHANGANACHERRY.

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PETITIONER:

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ABRAHAM NINAN,S/O.NINAN, AGED 66, CHIRATHALATTU HOUSE, VAKATHANAM P.O., VAKATHANAM VILLAGE, KOTTAYAM DISTRICT.

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BY ADVS.SRI.JOSEKUTTY MATHEW SRI.D.SREENATH

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RESPONDENT(S):

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1. P.V.KURIAN, AGED 63, JYOTHIS VILLA, VAKATHANAM KARA, VAKATHANAM VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT - 686538.

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2. K.O.THOMAS, AGED 63, KIZHAKKEDATHU HOUSE, VAKATHANAM KARA, VAKATHANAM VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT - 686 538.

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3. STATE OF KERALA, REPRESENTED BY TAHASILDAR, CHANGANASSERY TALUK, CHANGANASSERY-686101.

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4. STATE OF KERALA, REPRESENTED BY VILLAGE OFFICER, VAKATHANAM VILLAGE, VAKATHANAM-686538.

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R3 & R4 BY GOVERNMENT PLEADER SRI.M.I.JOHNSON

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 2579 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT-P1:	TRUE COPY OF COMMON JUDGMENT IN O.S.NO.220/2009 AND 318/2009 OF MUNSIFF COURT CHANGANACHERRY DATED 31.10.2011.
EXHIBIT-P2:	TRUE COPY OF COMMON JUDGMENT IN A.S.NO.283/2011 AND A.S.NO.284/2011 OF ADDITIONAL DISTRICT JUDGE (SPECIAL) DATED 11.8.2014.
EXHIBIT-P3:	PLAINT IN O.S.NO.376 /2014 OF CHANGANACHERRY MUNSIFF COURT DATED 16.9.2014.
EXHIBIT-P4:	TRUE COPY OF COMMISSION APPLICATION IN O.S.NO.376/2014 DATED 21.1.2015.
EXHIBIT-P5:	TRUE COPY OF JOINT TRAIL PETITION IN O.S.NO.376/2014 DATED 14.10.2014.
EXHIBIT-P6:	TRUE COPY OF WRITTEN STATEMENT OF D1 AND D2 IN O.S.NO.376/2014 DATED 30.7.2015.
EXHIBIT-P7:	TRUE COPY OF WRITTEN STATEMENT FILED BY THE 3RD AND 4TH DEFENDANT DATED 9.7.2015.
EXHIBIT-P8:	TRUE COPY OF THE APPLICATION I.A.NO.1639/2015 DATED 8/7/2014.
EXHIBIT-P9:	TRUE COPY OF THE OBJECTION TO THE ABOVE I.A.NO.1639/2015 DATED 15/7/2014.
EXHIBIT-P10:	TRUE COPY OF ORDER I.A.NO.1997/2015 DATED 18/12/2015.
EXHIBIT-P11:	TRUE COPY OF THE ORDER IN I.A.NO.1639/2015 DATED 18/12/2015.
EXHIBIT-P12:	TRUE COPY OF THE JUDGMENT IN O.P.(CIVIL) NO.2404/2015 DATED 7/10/2015.
EXHIBIT-P13:	TRUE COPY OF THE JUDGMENT IN O.P.CIVIL NO.513/2016 DATED 19/9/2016.
RESPONDENT(S)' --------------	EXHIBITS: ---------

//TRUE COPY//

P.S. TO JUDGE

mbr/

K.RAMAKRISHNAN, J. ============================

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O.P.(C).No.2579 of 2016

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

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Dated this the 21^th day of October, 2016

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JUDGMENT

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The petitioner is the sole defendant in O.S.No.220 of 2009 on the file of the Munsiff's Court Changnacherry and the 2^nd defendant in O.S.No.318 of 2009 of the same court. 1^St respondent herein is the 1^st plaintiff and 2^nd respondent herein is the 2^nd plaintiff in O.S.No.220 of 2009 and they filed O.S.No.220 of 2009 for fixation of boundary of item Nos. 1 and 2 of plaint schedule properties and recovery of possession of the properties which is said to be in the possession of the petitioner, which is situated on the northern side of the respondents' property and that property was shown as Item No.3 to the plaint. The petitioner filed written statement and counter was also filed to the injunction application. An advocate commissioner was appointed who had submitted a report stating that an old kayyala is in existence in east west direction separating the plaintiff's property and defendants properties. The 2^nd respondent herein filed

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O.P.(C).No.2579 of 2016 2

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O.S.No.318 of 2009 in collusion with the 1^st respondent arraying the 1^st respondent as 1^st defendant and petitioner as 2^nd defendant and sought for a declaration of easement right and injunction through the property of the petitioner viz. Item no.3 in O.S. 220 of 2009. The prayer in the suits was that the boundary will have to be fixed on the basis of re survey plan and petitioner had contended that they are in possession of the property on the basis of title deed claimed by them and the property will have to be measured on the basis of the title deed and also on the basis of the possession and the question regarding the rights claimed will have to be decided in the suit. Both these suits were tried jointly and the court below by Ext.P1 common judgment dismissed both the suits stating that the plaintiffs in the case did not succeed in proving their case. They filed appeal before the District Court, Kottayam as A.S.No.283 of 2011 and 284 of 2011 which were made over to Additional District Court (special) Kottayam for disposal and the Additional District Judge by Ext.P2 judgment allowed both the appeals and remanded the case for fresh disposal after remitting Ext.C1 series commissioner's report and plan to the advocate commissioner for rectifying the mistakes therein. The lower court was also given liberty to appoint a fresh

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O.P.(C).No.2579 of 2016 3

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commissioner if either parties applies for that purpose. They were also permitted to adduce further evidence if any including production of documents. It is thereafter, a commission was taken out and the commissioner had submitted the report as well. After remand, of those two appeals, the petitioner herein filed Ext.P3 suit as O.S.No.376 of 2014 against the same respondents herein, who are the plaintiffs in the earlier suits including the State as a party for fixation of boundary of his property which item No.3 in the other two suits, on the basis of the possession and document of title and also for consequential reliefs. Ext.P4is the application filed by the petitioner to take out commission and also filed Ext.P5 application for joint trial of this case along with O.S.No.220 of 2009 and 318 of 2009. Ext.P6 is the written statement filed by the defendants 1 and 2 in O.S.No.376 of 2014 and Ext.P7 is written statement filed by 3^rd defendant in the suit. The defendants in the case filed Ext.P8 application as I.A.1639 of 2015 for staying the proceedings in O.S.No.374 of 2014 pending adjudication of O.S.No.220 of 2009 and 318 of 2009 of the file of the Munsiff's Court, Changanassery. The present petitioners filed Ext.P9 objection to Ext.P8 application. The court below by Ext.P10 order dismissed the I.A.No.1997 of 2014 filed by the petitioner seeking

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O.P.(C).No.2579 of 2016 4

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for joint trial and allowed Ext.P8 application staying the proceedings under Section 10 of the Code of Civil Procedure by Ext.P11 order. The petitioner earlier filed O.P.(C)No.2404 of 2015 before this Court seeking speedy disposal of O.S.No.220 of 2009 and O.S.No.318 of 2009 and that has been allowed by this Court seeking direction to consider Ext.P4 application in that petition, viz., appointment of commission and Ext.P5 joint trial petition without delay and it is thereafter, the impugned orders have been passed by the court below. The petitioner filed O.P.(C)513 of 2016 before this Court and later, it was withdrawn with liberty to file fresh petition as there are some mistakes in the petition that was allowed as per Ext.P13 judgment. Now, the petitioner is challenging order passed by the court below dismissing the application for joint trial and also staying the proceedings under Section of 10 of the Code of Civil Procedure in Ext.P10 and P11 produced with the petition.

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Heard Shri.Josekutty Mathew, learned counsel appearing for the petitioner.

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The learned counsel for the petitioner submitted that the pleadings in O.S.No.376 of 2014 is complete and no prejudice will be caused if a joint trial is ordered. The reason stated in the

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O.P.(C).No.2579 of 2016 5

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petition was that the relief claimed in both the cases are same, parties are also same. So if joint rial is ordered, it will be beneficial to all the parties.

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The fact that O.S.Nos.220 of 2009 and 318 of 2009 were filed by respondents 1 and 2, one for fixation of boundary and other for declaration of easement right through the property of the petitioner, which is shown as item No.3 in both the cases. It is also not in dispute that a commission was taken out in those cases and commissioner has filed a report and plan fixing the boundary. After elaborate evidence adduced in those cases, the court below by Ext.P1 common judgment dismissed both the suits. They filed appeal before the District Court and the Additional District Court by Ext.P2 common judgment allowed both the appeals and remitted the cases to the court below for fresh disposal and also directed the commissioner's report and plan to be remitted for the purpose of rectifying the mistakes and also permitted the parties to adduce further evidence in that case. It is thereafter, that the petitioner filed O.S.376 of 2014 before the same court for fixation of boundary of his property with that of respondents 1 and 2 on the basis of the title deeds and possession and also for consequential injunction. It may be

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O.P.(C).No.2579 of 2016 6

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mentioned here that in a suit filed by respondents 1 and 2, if a boundary is fixed that will put an end to the dispute regarding the boundary between the neighbouring owners viz., plaintiffs and defendant in that suit who is the respondents and petitioner herein respectively. So there is no necessity to file a subsequent suit for the same relief by the petitioner. Further, evidence in other two cases were over and now it is posted for further evidence after completing the steps. This Court is of the opinion that there is no necessity for a joint trial of the later suit filed by the petitioner for the same relief for fixation of boundary of his property which is item No.3 in the earlier suit. So under such circumstances, the court below was perfectly justified in coming to the conclusion that there is no necessity for a joint trial considering the advance stage of the other two cases and that will only delay the disposal of the cases and that will serve the purpose of the petitioner for fixing the boundary of his property also and rightly dismissed that application and also rightly stayed the proceedings in O.S.No.376 of 2014 under Section 10 of the Code of the Civil Procedure as the decision in the other two suits will have same impact in the latter suit filed by the petitioner and that will decide the dispute the parties in the subsequent suit also. So under such circumstances,

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O.P.(C).No.2579 of 2016 7

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this court find no reason to interfere with the order passed by the court below rejecting the application for joint trial and allowing the application for staying the subsequent suit viz., O.S.376 of 2014 under Section 10 of the Code of the Civil Procedure invoking the supervisory jurisdiction under Article 227 of the Constitution of India. The petitioner can take all the contentions raised by him in the suit O.S.No.376 of 2014 in the earlier suits viz., 220 of 2009 and 318 of 2009 which has been remanded by the Appellate court for fresh disposal where evidence was already been taken and it is posted for trial and included in the list.

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So the petition lacks merit and the same is hereby dismissed as in limine

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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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SKV

Abraham Ninan v. P.V. Kurian

Case brief

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Abraham Ninan v. P.V. Kurian

Case brief

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