High Court allowed a petition challenging dismissal of an application to remit a commissioner's report for fresh measurement in an injunction suit. Court held remittal unnecessary at this stage as suit seeks injunction, not boundary fixation.
Petition dismissed in limine; registry directed to communicate judgment to court below.
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 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938
OP(C).No. 2843 of 2016 (O)
ORDER DATED 30-06-2016 IN OS 390/2013 OF ADDL. MUNSIFF COURT, KANNUR
PETITIONER(S):
THARAYIL PEEDIKAYIL KUNHAMINA, AGED 63 YEARS, D/O.RABIA UMMA, AZHIKODE AMSOM DESOM AND POST, KANNUR DISTRICT.
BY ADVS.SRI.R.SREEHARI SRI.SACHIN VYAS SRI.K.RAJESH SUKUMARAN
RESPONDENT(S):
1. KEELATH PUTHIYA PURAYIL ABDULLA, AGED 67 YEARS, S/O.K.P.IBRAHIMKUTTY, RESIDING AT VALIYA KUNNUMPURATH HOUSE, NEAR CHAKKARAPARA, AZHIKODE AMSOM, DESOM AND POST, KANNUR DISTRICT - 670 009.
2. KEELATH PUTHIYA PURAYIL NABEESAA, D/O.K.P.IBRAHIMKUTTY, AGED 69 YEARS, RESIDING AT KEELATH PUTHIYA PURAYIL, NEAR CHEERABA KAVU, AZHIKODE AMSOM DESOM AND POST, KANNUR - 670 009.
3. KEELATH PUTHIYA PURAYIL SOUJATH, D/O.V.K.ABDULLA, AGED 47 YEARS, RESIDING AT KEELATH PUTHIYAPURAYIL, NEAR CHEERABA KAVU, AZHIKODE AMSOM DESOM AND POST, KANNUR - 670 009.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
OP(C).No. 2843 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS
NIL
//TRUE COPY//
P.S.TO JUDGE
msv/
K. RAMAKRISHNAN, J.
O.P.(C)Nos.2843 of 2016
................................................................. Dated this the 14th day of November, 2016.
JUDGMENT
This petition has been filed by the petitioner challenging Ext.P7 order passed by the court below in I.A.821/2016 in O.S.390/2013 on the file of Munsiff Court, Kannur under Article 227 of the Constitution of India.
O.P.(C)Nos.2843 of 2016
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reporting the existence of a boundary and the measurement and the total extent of both 'F E L K J H F' plot and the remaining land in the possession of the petitioner up to the 'kila'. The respondents filed Ext.P6 objection to the same, stating that the commissioner has properly measured the property and the plaintiff has no right over the property as it is comprised in survey No.522/5 whereas the property of the plaintiff is in survey No.521/4 and the defendants are in possession of the property in survey No.522/5 and the total extent covered by the survey No.525/5 is 21 cents. The petitioner has not obtained any right over survey No.522/5. They prayed for dismissal of the application. After considering the submissions of both parties, the court below came to the conclusion that, there is no necessity to remit the commissioner's report and there is no demarcation of the boundaries along 'F E L K' line which is the southern boundary claimed by the petitioner starting from point 'K'. According to the court below, if there is any boundary that would have been noted by the commissioner and the suit is only for permanent prohibitory injunction and not for fixation of the boundary or recovery of the possession and there is no necessity to remit the commissioner's report. Dissatisfied with the same the present petition has been filed.
O.P.(C)Nos.2843 of 2016
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some dispute regarding the survey number, he want only to prove the possession and according to him, he is in possession of the property within well defined boundaries and existence of the southern boundary has not been noted by the commissioner.
So under such circumstances, it is for the plaintiff to prove by oral evidence regarding his possession of the property, for that
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purpose, he can examine the commissioner and the surveyor and on the basis of the evidence available during trial, if the court below feels that the existence of a boundary on the southern side was omitted to be mentioned by the commissioner and that can be considered and if fresh report is required for that purpose, that can be called for by the court, if the court is satisfied that, that is required for proper adjudication of the case. So at this stage this court feels that, there is no necessity to remit the commissioner's report and the court below was right in dismissing the application. But when the evidence is adduced on this aspect, any observation made by the court below in this impugned order should not stand in the way of taking a different view to ascertain certain facts which is required for proper consideration of the case to resolve the dispute in the case.
With the above direction and observation, the petition is dismissed in limine .
Registry is directed to communicate this judgment to the court below at the earliest.
Sd/- (K. Ramakrishnan, Judge)
//True Copy//
P.A. to Judge
ss
1 issue framed by the court
Whether a commissioner's report remitted for measurement in an injunction suit requires remittal for determination of boundary existence before trial evidence.
1 provisions across 1 enactments
Tharayil Peedikayil Kunhamina
Keelath Puthiya Purayil Abdulla
Keelath Puthiya Purayil Nabeesaa
Keelath Puthiya Purayil Soujath
K.Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
