Petitioner challenged the dismissal of an application for remission of a commissioner's report in a property suit. The High Court found the report useful and the order unsustainable for interference, dismissing the petition.
Petition challenging the lower court's order was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938
OP(C).No. 2774 of 2016 (O)
--------------------------(IA.NO.2181/2016 IN OS.NO.379/2008 OF MUNSIFF'S COURT, NORTH PARAVOOR)
PETITIONER :
SATHEESH CHANDRAN, AGED 43 YEARS, S/O. DEVAKI, ARACKAPARAMBIL, MANJUMMAL KARA, ELOOR VILLAGE, PARAVOOR TALUK, PARAVOOR-683 513.
BY ADV. SRI.B.RAMACHANDRAN
RESPONDENT :
VELU, AGED 65 YEARS, S/O. KANNAN, VALUCHIRAVEETIL, UDYOGAMANDAL-683 501.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
OP(C).No. 2774 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
P2 TRUE COPY OF THE COUNTER CLAIM DATED 06/12/2011 P3 TRUE COPY OF THE PURCHASE CERTIFICATE DATED 20/05/1978 OBTAINED IN THE NAME OF FATHER OF THE PETITIONER P4 TRUE COPY OF THE SKETCH PREPARED IN O.A NO. 1283/70 DATED 07/03/2008 P5 TRUE COPY OF THE COMMISSION REPORT DATED 25/08/2016 ALONG WITH SKETCH PREPARED BY THE TALUK SURVEYOR P6 TRUE COPY OF THE I.A.NO. 2181/2016 IN O.S.NO. 379/2008 DATED 23/09/2016 P7 TRUE COPY OF THE ORDER DATED 05/10/2016 IN I.A.NO. 2181/2016 IN O.S.NO. 379/2008 OF THE MUNSIFF'S COURT, PARAVOOR.
RESPONDENT(S)' EXHIBITS:
NIL
/TRUE COPY/
P.S.TO JUDGE
sts
K. RAMAKRISHNAN, J.
....................................... O.P.(C).No.2774 of 2016
........................................ Dated this the 7th day of November, 2016.
JUDGMENT
This is a petition filed by the petitioner challenging Ext.P7 order passed by the court below dismissing the application to remit the commissioner's report under Article 227 of the Constitution of India.
O.P.(C).No.2774 of 2016 2
trespassed by the plaintiffs in the suit and reduced into possession and they are entitled to get recovery of possession of that portion also for mandatory injunction to remove the unauthorized construction made in the property. They produced Ext.P3 purchase certificate obtained in the name of their father in OA.No.1283/1970 dated 7.3.2008 along with Ext.P4 sketch said to be the sketch produced by the Revenue Inspector in that proceedings identifying the property to be assigned under the Land Reforms Act. The petitioner filed IA.No.2472/2015 for appointment of an Advocate Commissioner and the commissioner filed Ext.P5 plan and report in which the commissioner had stated that the property of the defendant could not be identified and the property is not situated near the paint schedule property and also found that the survey number mentioned by the plaintiffs was not correct but identified the property on the basis of the documents available in the revenue office. The petitioner filed IA.No.2181/2016 to remit the commissioner's report, but that was dismissed by Ext.P7 order which is under challenge.
O.P.(C).No.2774 of 2016 3
identified by the commissioner and that is required for proper adjudication of the case. The commissioner also did not take any steps to identify the property on the basis of the sketch provided in OA.No.1283/1970. Without identifying the same, the relief claimed in the counter claim cannot be granted and they also wanted to amend the plaint.
O.P.(C).No.2774 of 2016 4
report and plan wherein the commissioner had noted that the property claimed by the petitioners are not identifiable on the basis of the descriptions made and the survey number mentioned therein is not situated near the property of the plaintiffs. But it was noted by the commissioner that the property claimed by the defendants in the counter claim is part of survey No.204/8 which is the correct survey number of the property. It is also seen from the commissioner's report that though the plaintiffs claimed that they are in possession of the property in Sy.No.186/6 of Eloor north, on verification of the revenue records, the commissioner found on the basis of the description of the property mentioned in the document which is now lying in new ReSy.No.25 and which taken the old Sy.No.206/1 and 204/8. It is on that basis the commissioner identified the property of the plaintiffs and submitted Ext.P4 sketch which is not the sketch intended to be produced by the petitioner as the sketch prepared by the Revenue Inspector in OA.No.1283/70 of Land Tribunal. The counsel for the petitioner had submitted the sketch plan prepared in the OA proceedings for perusal which is not helpful to identify the property as except showing the Sy.No.186/6, no other descriptions have been mentioned in that document. Further even in Ext.P3 also, the survey number mentioned is 186/10 and the owner of the property was shown as Goplakrishna Iyer. But no boundaries
O.P.(C).No.2774 of 2016 5
were mentioned regarding the property as well. So under such circumstances, the commissioner cannot be found fault for not identifying the property on the basis of the documents produced by the defendants but however the commissioner had noted in the report that the property now claimed by the defendants is in Sy.No.204/8. So that is a matter to be considered by the court on the basis of evidence. Further the commissioner also noted that the property in Sy.No.188/10 is situated away from the plaint schedule and not situated near the plaint schedule property. So even if the commissioner's report is remitted to the commissioner, he many not be able to identity the property on the basis of the documents now available before him. The parties are at liberty to adduce evidence showing the corresponding resurvey number in respect of this property and relate back the same to the old survey number as well as has been done by the commissioner to identify the property of the plaintiff. If on the basis of the evidence adduced, if the court feels that what is stated by the commissioner is not correct, then the court is at liberty to remit the commissioner’s report for getting a fresh report to identify the counter claim property before disposing the case. The petitioner can also examine the commissioner and the surveyor who prepared the plan and report and try to identify the property on the basis of the documents produced at the time of
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O.P.(C).No.2774 of 2016
trial. So under such circumstances, this court feels that on the basis of the materials available, the order passed by the court below dismissing the application cannot be said to be unsustainable warranting interference at the hands of this court.
With the above directions and observations, this petition is dismissed. Registry is directed to communicate a copy of this judgment to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl
2 issues framed by the court
Whether the High Court can interfere with the lower court's order dismissing the application to remit the commissioner's report in a property suit.
Whether the commissioner's report can be relied upon after the lower court dismissed an application to remit it to re-identify the disputed property.
Colour shows how this judgement treated each authority
Article 227 of the Constitution of IndiaReferred¶28
Satheesh Chandran
Velu
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
K. Ramakrishnan
Parties & counsel
