Allowed

Vadakke Puthalath Narayani Amma v. Vadakkiniyil Krishnan

Kerala HC30 Aug 2016OP(C)/2904/2015

Case brief

AI extract

What is this about?

The High Court allowed a petition under Article 227 to remit a commissioner's report in a property dispute. The court held that the measurement, based only on an assignment deed, failed to account for prior partition boundaries and land taken for road formation, hindering proper adjudication.

What did the court decide?

The petition was allowed, the lower court's order dismissing the application to remit the commissioner's report was set aside, and the report was remitted for measurement based on the 1984 partition d

Vadakke Puthalath Narayani Amma Vs Vadakkiniyil Krishnan — Property and Title | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

TUESDAY, THE 30TH DAY OF AUGUST 2016/20168TH BHADRA, 1938

¶5

OP(C).No. 2904 of 2015 (O)

¶6

I.A.NO. 1617/2015 IN O.S.NO. 40/2012 OF THE MUNSIFF COURT, PAYYANNUR

¶7

PETITIONER(S)/PETITIONERS/DEFENDANTS :

¶8

1. VADAKKE PUTHALATH NARAYANI AMMA, AGED 85 YEARS, D/O. PATTI AMMA, PANAPUZHA AMSOM DESOM, KANNUR DISTRICT- 671 001.

¶9

2. VADAKKE PUTHALATH THAMBAYI AMMA, AGED 82 YEARS, D/O. PATTI AMMA, PANAPUZHA AMSOM DESOM, KANNUR DISTRICT- 671 001.

¶10

3. P.MADHUSOODANAN, AGED 42 YEARS, S/O. UMBICHI AMMA, PANAPUZHA AMSOM DESOM, KANNUR DISTRICT- 671 001.

¶11

4. KELOTH UTHAMANTHIL BALAN, AGED 60 YEARS, S/O.THAMBAYI AMMA, KADANNAPPALLY AMSOM, CHERUVICHERI DESOM, KANNUR DISTRICT- 671 001.

¶12

BY ADVS. SRI.O.V.MANIPRASAD SRI.JOSE ANTONY

¶13

RESPONDENT(S)/RESPONDENT/PLAINTIFF :

¶14

VADAKKINIYIL KRISHNAN, AGED 63 YEARS, S/O. KELU, PANAPUZHA AMSOM, KAITHAPARAM DESOM, KANDOMDAR, MATHAMANGALAM.P.O., MM BAZAR VIA, KANNUR DISTRICT, PIN-670 306.

¶15

BY ADV. SRI.MAHESH V RAMAKRISHNAN

¶16

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

Msd.

¶18

OP(C).No. 2904 of 2015 (O)

¶19

APPENDIX

¶20

PETITIONER(S)' EXHIBITS :

¶21

P1 A TRUE COPY OF THE PLAINT IN O.S NO.40/2012 OF THE MUNSIFF COURT, PAYYANNUR.

¶22

P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED ON BEHALF OF THE PETITIONERS/DEFENDANTS.

¶23

P3 A TRUE COPY OF THE COMMISSION REPORT AND PLAN DATED 10.04.2015.

¶24

P4 A TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT IN I.A NO.1617/2015 IN O.S NO.40/2012.

¶25

P5 A TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFF.

¶26

P6 A TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFF.

¶27

P7 A TRUE COPY OF THE ORDER DATED 30.10.2015 IN I.A NO.1617/2015 IN O.S.NO.40/2012 OF THE MUNSIFF COURT, PAYYANNUR.

¶28

P8 THE TRUE COPY OF THE PLAN FILED BY THE ADVOCATE COMMISSIONER IN O.S.NO. 40/2012 OF MUNSIFF COURT, PAYYANNUR.

¶29

P9 THE TRUE COPY OF THE AFFIDAVIT AND INTERIM APPLICATION IN I.A.NO. 1617/2015 IN O.S.NO. 40/2012 OF MUNSIFF COURT, PAYYANUR.

¶30

RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

K.RAMAJKRISHNAN, J.

======================== O.P.(C) No.2904 of 2015

¶37

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

¶38

Dated this the 30^th day of August, 2016

¶39

JUDGMENT

¶40

This petition has been filed by the petitioner challenging Ext.P7 order passed by the court below, rejecting the application to remit the commissioner's report under Article 227 of the Constitution of India.

¶41

It is alleged in the petition that the petitioners are the defendants in O.S.40/2012 pending before the Munsiff Court, Payyannoor. The suit was filed by the plaintiff/ respondent herein for permanent prohibitory injunction and mandatory injunction. The allegation was that he obtained 38 cents of land as per assignment deed No.1963/1996 of S.R.O., Mathamangalam dated 22.7.1996 from one Sreedharan and another. The property originally belong to the present petitioners, one Kunjappan. They partitioned the property as per partition deed No.1632/84 and in the said partition deed, 'C' schedule was set apart to Kunjappan, which is having an extent of 38 cents in Resurvey No.50/282, that

¶42

O.P.(C) No.2904/2015 Page numbers

¶43

property was later assigned by Kunjappan to Sreedharan and another from whom the plaintiff obtained the property. From the total extent of 38 cents, 13 cents on its northern portion was assigned to a third party by the respondent herein. The allegation that he is in possession of 25 cents is not correct. The property on the western side of the plaint schedule property is that of the first defendant, it is included in 'A' schedule to the said partition deed. The allegation that he tried to trespass into the property is not correct.

¶44

They filed written statement denying the allegation and Ext.P2 is the written statement so filed. It is also mentioned in the written statement that the boundary and the extent shown are not correct as after the partition deed, a portion was taken for the road on the southern and eastern side of the plaint schedule property and that has been suppressed by the plaintiff in the plaint and the attempt of the plaintiff is to grab such portion so taken for road from the property in the possession of the defendants. So they prayed for dismissal of the suit.

¶45

O.P.(C) No.2904/2015 Page numbers

¶46

The respondent filed a commission application to measure the property and accordingly, Commissioner measured the property with the help of a Surveyor and submitted Ext.P3 report along with the plan. Since the measurement was not properly done, the petitioners filed Ext.P4 application as I.A No.1617 of 2015 to remit the Commissioner's report as the Commissioner has not identified the property correctly on the basis of the prior title deeds of the parties and also the portion, if any, taken for the formation of the road on the southern eastern side of the plaint schedule property. The Commissioner has not measured the property of the defendants so as to ascertain the property obtained by them as per the partition deed. So they wanted to remit the Commissioner's report. The respondent filed objection to that application. Plaintiff also filed Ext.P6 objection to the Commissioner's report. The court below by Ext.P7 order dismissed the application, which is under challenge.

¶47

Heard Sri.O.V.Maniprasad, counsel appearing for the petitioners and Sri.Mahesh V.Ramakrishnan, counsel appearing for

¶48

O.P.(C) No.2904/2015 Page numbers

¶49

the respondent.

¶50

The counsel for the petitioners submitted that both the parties are claiming right over the properties on the basis of a prior partition deed of the year 1984. The plaintiff had purchased the property from the assignee of the original allottee in the original partition deed. Defendants are other persons who are allotted a portion. Unless the properties are measured on the basis of the partition deed, it is not possible to identify and locate the properties correctly. Further, the Commissioner has not made any attempt to find out as to whether any portion of the plaint schedule property has been taken for the purpose of formation of the road, which runs on the southern and eastern side of the plaint schedule property. The court below was not justified in dismissing the application.

¶51

On the other hand, counsel for the respondent submitted that it will be seen from the Commissioner's report that the petitioners have not co-operated in measuring the property and that was the reason why the Commissioner could not locate the property of the defendants. Now they cannot take advantage of

¶52

O.P.(C) No.2904/2015 Page numbers

¶53

non-measurement of their property. So, according to the learned counsel, the court below was perfectly justified in dismissing the application as the suit is of the year 2012 and the Commissioner's was filed as early as in 2015 only. But, the application was filed belatedly.

¶54

It is an admitted fact that plaint schedule property and the property of the defendants are part of the same property originally belonging to the petitioners herein and one Kunjappan and they partitioned the property in the year 1984 as per partition deed No.1632/1984. C schedule property was having an extent of 38 cents was allotted to the said Kunjappan, who later assigned the same to one Sreedharan and another, from whom the respondent herein purchased the same as per assignment deed No.1963/1996 of SRO, Mathamangalam dated 22.07.1996. The remaining property on the western side so allotted to Kunjappan was allotted to the petitioners as per the same partition deed and they are in possession of the same. It is also in a way admitted that out of 38 cents obtained by plaintiff, he had assigned 13 cents to a third

¶55

O.P.(C) No.2904/2015 Page numbers

¶56

party, which is situated on the northern portion of the property obtained by him as per the assignment deed and he is claiming the remaining 25 cents, which is shown as plaint A schedule property. The case of the defendants was that, after the partition deed, a road was formed on the southern side of plaint A schedule property and a portion of the property belonging to the plaintiff was taken for that purpose. The attempt of the plaintiff is to add that portion to his property from the property in possession of the defendants. So, it is necessary to locate the property of the plaintiff obtained by the predecessor of the plaintiff as per 1984 partition deed and also to ascertain as to whether any portion from that property has been taken for the purpose of formation of the road, which is now seen on the southern and eastern side of the property as per the Commissioner's report. Further, unless the property in the possession of the defendants, which was allotted to them as per the said partition deed, was also measured, it cannot be said as to whether they are in possession of any excess land or any portion of the property in possession of the plaintiff, has been encroached

¶57

O.P.(C) No.2904/2015 Page numbers

¶58

upon by the defendants. It is seen from the Commissioner's report as well as the finding of the court below that the Commissioner had only attempted to measure the property on the basis of assignment deed No. 1963/1996 of SRO, Mathamangalam alone and no attempt was made to measure and locate the property on the basis of the common title deed namely partition deed No.1632/1984. Unless this is done, the exact location of the properties cannot be identified, which is required for proper adjudication of the case. So, it is true that there is a mention made by the Commissioner in his report that when the Commissioner tried to measure the southern boundary of the plaint schedule property, the defendants did not co-operate with him and that was the reason why he could not measure the property of the defendants. But, that fact ought to have been reported to the court and some directions ought to have been obtained from the court before completing the work by the Commissioner, which has not been done in this case. So, under such circumstances, this Court feels that it is necessary in the interest of justice to allow the petition to measure the properties on

¶59

O.P.(C) No.2904/2015 Page numbers

¶60

the basis of the original partition deed on the basis of which both parties claim right and title to the property so as to properly adjudicate the case for the purpose. So, Ext.P7 order passed by the court below has to be set aside and the Commissioner's plan and report have to be remitted for the purpose of measuring and locating the properties on the basis of the original partition deed namely 1632/1984, by which both the parties derived title to the property claimed by them.

¶61

So, the petition is allowed and Ext.P7 order passed by the court below dismissing the application to remit the Commissioner's report is set aside and the petition is allowed. The Commissioner's report is remitted to the Commissioner for measuring the property as stated above on the basis of the partition deed No.1632/1984 on the basis of which both parties derived title to their respective properties and locate the properties and find out as to whether any portion of the property claimed by the plaintiff has been taken over for the purpose of formation of the road now running on the southern and eastern side of the plaint schedule

¶62

O.P.(C) No.2904/2015 Page numbers

¶63

property and locate those aspects also in the plan. The court below is directed to fix the remuneration payable to the Commissioner and Surveyor and that amount will have to be paid by the petitioners herein. The court below is also directed to fix the time limit for submission of the report and try to expedite the suit as expeditiously as possible as the suit is of the year 2012.

¶64

With the above direction and observation the petition is disposed of. Registry is directed to communicate this judgment to the court below at the earliest.

¶65

Sd/-

¶66

K.RAMAKRISHNAN, JUDGE

¶67

vdv+ss/02/09/16

Vadakke Puthalath Narayani Amma v. Vadakkiniyil Krishnan

Case brief

What is this about?

What did the court decide?

Vadakke Puthalath Narayani Amma v. Vadakkiniyil Krishnan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.C.Thomas Vs Achamma Mathew

Sudha Vs Jessy

Baby Augustian Vs Alex Kozhikkottu

K.Venugopal Vs P.T.Uma

V.S. Sidharthan Vs the Land Tribunal

Arun Kumar.K Vs M/S. Indian Bank