Dismissed

N.T.Faizal v. Pathumma Hajumma

Kerala HC26 Oct 2016OP(C)/2627/2016

Case brief

AI extract

What is this about?

The High Court dismissed an original petition challenging the dismissal of an application seeking remission of a Commissioner's report in a suit for declaration of easement right of way by prescription. The Court held the lower court's finding that the existence of an alternative way is of no consequence was not illegal and noted the petitioner could have sought an additional visit instead of remi

What did the court decide?

Petitioner to collect additional facts by filing an application for directing the Commissioner to make a visit and report matters substantiating his case.

N.T.Faizal Vs Pathumma Hajumma — 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. 2627 of 2016 (O)

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(AGAINST THE ORDER DATED 21.6.2016 IN IA 341/2016 IN OS 378/2013 of MUNSIFF COURT, KUTHUPARAMBA )

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PETITIONER:

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N.T.FAIZAL S/O. P .P. KUNHALIKUTTY, AGED 36 YEARS, BUSINESS, REJINA MANZIL, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P. O. KUTHUPARAMBA, PIN-670643.

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BY ADVS.SRI.K.V.PAVITHRAN

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SRI.M.P.JAYANANDAN SRI.P.SAJU SRI.NIYAS SRI.E.M.UNNIKRISHNAN

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RESPONDENTS:

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PATHUMMA HAJUMMA

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W/O.M. P. BEERA MUSALIAR, AGED 50 YEARS, NO OCCUPATION, P .P. HOUSE, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P .O. KUTHUPARAMBA, PIN-670643.

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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. 2627 of 2016 ()

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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 378/2013 OF THE MUNSIFF COURT, KUTHUPARAMBA

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EXHIBIT P2 - TRUE COPY OF THE REPORT DTD 26/11/2013 OF THE MUNSIFF COURT, KUTHUPARAMBA.

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EXHIBIT P3 - TRUE COPY OF THE PLAN DTD 26/11/2013 OF THE MUNSIFF COURT, KUTHUPARAMBA

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EXHIBIT P4 - TRUE COPY OF THE WRITTEN STATEMENT FILED IN OS NO 378/2013 OF THE MUNSIFF COURT, KUTHUPARAMBA

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EXHIBIT P5 - TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN SUPPORT OF THE OBJECTION TO THE COMMISSION REPORT.

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EXHIBIT P6 - TRUE COPY OF THE ORDER DTD 21/6/2016 IN IA NO 341/2016 OF THE MUNSIFF COURT, KUHTUPARAMBA.

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RESPONDENT(S)' EXHIBITS: NIL

OKB.

//TRUE COPY//

P.A. TO JUDGE.

K.HARILAL, J.

O.P.(C) No.2627 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 defendant in O.S.No.378/2013

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on the files of the Munsiff's Court, Kuthuparamba filed by the respondent herein claiming a decree declaring right of easement over plaint B schedule property. In the suit an Advocate Commissioner had been appointed to prepare a Mahazar and to report the state of affairs on the date of filing the suit and the Commissioner filed a report in that respect. Now the petitioner, the defendant in the suit, filed the aforesaid application seeking remission of the said report on the reason that at the time of first inspection, even if notice was issued to him by the Commissioner, he was unaware of the nature of suit and the relief sought for in the suit filed against him. So also he wants to ascertain the existence of alternative pathway also. After considering the objection filed by the plaintiff, the

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O.P(C).2627/16-O :2: .

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court below dismissed the said application on a finding that in a suit for declaration of easement right of way by prescription, the existence of an alternative way is of no consequence at all. The legality of the aforesaid finding is under challenge in this original petition.

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Heard the learned counsel for the petitioner.

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It stands admitted that during the course of inspection the petitioner was present in the property. It is his case that the existence of an alternative way is not reported by the Commissioner and he wants to collect some additional facts also. So also, he challenged certain observations made by the Commissioner as untrue and false. As rightly held by

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the court below in a suit for declaration of an easement right of way by prescription the existence of alternative way is of no consequence at all, particularly when the plaintiff has no case that the pathway over the defendant's property is the only way for the ingress and egress to his property. Therefore,

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O.P(C).2627/16-O :3: .

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I do not find any illegality in the aforesaid finding.

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For the collection of certain additional facts,

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which are said to have been in existence in the property, remission is not required and the petitioner could have filed an application for directing the same Commissioner to make a visit and report the matters which the petitioner wants to substantiate his case. No doubt, the matters which are not covered by the earlier report alone can be collected in this way. But the petitioner has not filed such an application.

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If such an application is filed, the court below will consider the same and if it finds that the matters sought to be ascertained are not covered by the earlier report and those matters are relevant for the determination of the matter in issue, certainly, the court will allow it.

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However, this Court finds that the court below is justified in dismissing the application seeking remission of the earlier commission report and there is no illegality or impropriety in the impugned order.

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O.P(C).2627/16-O :4: .

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This judgment will not stand in the way of making an attempt to collect evidence as indicated above.

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This original petition will stand dismissed.

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Sd/K.HARILAL, Judge.

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okb

N.T.Faizal v. Pathumma Hajumma

Case brief

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N.T.Faizal v. Pathumma Hajumma

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