Dismissed

Thengumpallil James v. Saji Thengumpalli

Kerala HC26 Oct 2016OP(C)/2624/2016

Case brief

AI extract

What is this about?

Petitioner challenged the dismissal of an application to remit a commission report for measuring property, seeking declaration of right of way and injunction. The court held measurement unnecessary for the current reliefs as the pathway already exists and both landowners were impleaded.

What did the court decide?

Petition to remit commission application with prayer to measure property dismissed; original petition dismissed.

Thengumpallil James Vs Saji Thengumpalli — 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.HARILAL

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WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938

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OP(C).No. 2624 of 2016 (O)

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(IA 1130/2016 IN OS 276/2012 of MUNSIF COURT, KUTHUPARAMBA)

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PETITIONER(S):

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THENGUMPALLIL JAMES S/O. THENGUMPALLIL VARGHESE, AGED 52 YEARS, ENGINEER BY PROFESSION, RESIDING AT NELLIKKODE VILLAGE, CHERVAYOOR PO., KOZHIKODE TALUK

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BY ADVS.SRI.K.V.PAVITHRAN SRI.M.P.JAYANANDAN SRI.P.SAJU SRI.NIYAS

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RESPONDENT(S):

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1. SAJI THENGUMPALLIL S/O. THENGUMPALLIL VARGHESE, AGED 42 YEARS, TEACHER, MUZHAKKUNNU AMSOM, PALA DESOM, P.O. KAKKENGAD, KANNUR DISTRICT.

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2. SHAJI THENGUMPALLIL S/O. THENGUMPALLIL VARGHESE, AGED 39 YEARS, TEACHER, MUZHAKKUNNU AMSOM, PALA DESOM, PO., KAKKENGAD, KANNUR DISTRICT.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2624 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 PLAINT IN OS.NO.27/2012 OF THE MUNSIFF COURT, KUTHUPARAMBA.

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EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.276/2012 OF THE MUNSIFF COURT, KUTHUPARAMBA.

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EXHIBIT P3: TRUE COPY OF THE COMMISSION REPORT DATED 10.9.2012 IN OS.NO.276/2012 OF THE MUNSIFF COURT, KUTHUPARAMBA.

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EXHIBIT P4: TRUE COPY OF THE COMMISSION PLAN DATED 10.9.2012 IN OS.NO.276/2012 OF THE MUNSIFF COURT, KUTHUPARAMBA.

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EXHIBIT P5: TRUE COPY OF THE 2ND REPORT DATED 25.1.2016 IN OS.NO.276/2012 OF THE MUNSIFF COURT, KUTHUPARAMBA.

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EXHIBIT P6: TRUE COPY OF THE 2ND PLAN DATED 25.1.2016 IN OS.NO.276/2012 OF THE MUNSIFF COURT, KUTHUPARAMBA.

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EXHIBIT P7: TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.NO.1130/2016

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EXHIBIT P8: TRUE COPY OF THE ORDER DISMISSING THE I.A.NO.1130/2016

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RESPONDENT(S)' EXHIBITS NIL

OKB

// True copy //

P.A. to Judge

K.HARILAL, J.

O.P.(C) No.2624 of 2016

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Dated this the 26^th day of October, 2016

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JUDGMENT

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~ ~ ~ ~ ~

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The petitioner is the plaintiff in O.S.No.276/2012

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on the files of the Munsiff's Court, Kuthuparamba. The suit is one for declaration of right of way over the plaint C schedule property and for prohibitory injunction restraining the defendants from construction of boundaries encroaching the plaint schedule property. It is the case of the plaintiff that he got right to use plaint C schedule property for access to his plaint A schedule property from B schedule property and the right of way is claimed through the defendants' property. Now it is the case of the petitioner that the Advocate Commissioner after inspecting the property expressed her inability to identify the servient heritage which belongs to two owners; the first and second defendants. In view of the aforesaid report, the petitioner filed the above

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O.P.No.(C).2624/16-O :2:

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application to remit the commission application with a prayer to the Commissioner to measure the property and fix the boundaries with the help of Taluk Surveyor. But the court below dismissed the said application on a finding that the measurement of the property is not required in view of the relief sought for in the plaint and the nature of right claimed by the petitioner. The legality of the aforesaid finding is assailed in this original petition.

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Heard the learned counsel for the petitioner.

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It is not disputed that the measurement is

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sought for identification of A and B schedule properties and the property of the petitioner. It is the fundamental principle that evidence may be given to prove the existence or non existence of every fact in issue and relevant fact and no others. Admittedly the suit is one for declaration of an easement right of way by necessity and prohibitory injunction. The measurements or demarcation of the property are neither a fact in issue nor a relevant fact. The

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O.P.No.(C).2624/16-O :3:

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specific case advanced by the petitioner is that there is a way since the last more than 18 years and the plaintiff has been using the said pathway as of right and the said pathway is necessary for ingress and egress to A and B schedule properties. As rightly held by the court below, this Court is also of the view that, in view of the relief sought for, the measurement of the property is not required for declaration of the right of way with respect to the pathway, which is in existence on the date of suit, particularly when the owners of both servient heritage are made parties to the suit.

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Coming to the prohibitory injunction, it is the case of the petitioner that his property is well identifiable one and that the defendants are preparing to construct boundaries encroaching the plaint schedule property. In a simple suit for injunction, no purpose will be served by measuring the property on the basis of existing boundaries. Thus, the court below is justified in rejecting the

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O.P.No.(C).2624/16-O :4:

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application. However, I make it clear that the impugned order or this judgment will not stand in the way of preferring application for measuring the property in case the petitioner amends the plaint and seeks new reliefs.

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This original petition is dismissed.

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Sd/K.HARILAL, Judge.

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okb

Thengumpallil James v. Saji Thengumpalli

Case brief

What is this about?

What did the court decide?

Thengumpallil James v. Saji Thengumpalli

Case brief

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