Disposed

K C Joseph v. P M Sebastian

Kerala HC18 Jul 2016OP(C)/3059/2015

Case brief

AI extract

What is this about?

This original petition under Article 226 challenged a subordinate court's dismissal of an application seeking a fresh commissioner. The High Court directed the lower court to reconsider evidence regarding boundary disputes without being barred by earlier observations, expediting the trial.

What did the court decide?

The petitioner's original petition was disposed of with directions to the court below to consider the need for a further report based on trial evidence and expedite disposal within six months.

K C Joseph Vs P M Sebastian — 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.RAMAKRISHNAN

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MONDAY, THE 18TH DAY OF JULY 2016/27TH ASHADHA, 1938

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OP(C).NO. 3059 OF 2015 (O)

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I.A. NO.360/2015 IN OS NO.634/2006 OF 1ST ADDL.SUB COURT,ERNAKULAM

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NAME AND ADDRESS OF PETITIONER:

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K C JOSEPH, AGED 66 YEARS, S/O.CHOURI, KANJANAPILLIL HOUSE, POONITHURA VILLAGE, VYTTILA DESOM, COCHIN - 682 019.

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BY ADV. SRI.P.J.JOSEPH PANIKKASSERY

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NAME AND ADDRESS OF RESPONDENT:

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P M SEBASTIAN AGED 61 YEARS, S/O.MANI, POOVAKKATTU HOUSE, KANJIRAMATTOM DESOM, P.O. KURUPPANTHARA - 686 603, KOTHANALLOOR VILLAGE VAIKOM, KOTTAYAM.

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BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.U.VINOD KUMAR SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).NO. 3059 OF 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1 - COPY OF WRITTEN STATEMENT DT. 18.3.2007 IN O.S.634/06 OF 1ST ADDL. SUB COURT, ERNAKULAM.

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EXT.P2 - COPY OF COMMISSION REPORT DT. 24.9.2014 IN I.A.5719/13 IN O.S.NO.634/06 OF 1ST ADDL. SUB COURT, ERNAKULAM.

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EXT.P3 - COPY OF SKETCH ISSUED BY TALUK SURVEYOR, KANAYANNOOR DT. 8.2.2006.

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EXT.P4 - PHOTOGRAPH OF WELL AND PUMP HOUSE

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EXT.P5 - COPY OF OBJECTION DT. 19.1.15 AGAINST COMMISSION REPORT.

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EXT.P6 - COPY OF APPLICATION DT. 19.1.15 I.A.NO.360/15 IN OS.634/06 OF 1ST ADDL. SUB COURT, ERNAKULAM.

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EXT.P7 - COPY OF ORDER DT. 31.08.2015 IN I.A.NO.360/15 IN OS.634/06 OF 1ST ADDL. SUB COURT, ERNAKULAM.

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RESPONDENTS EXHIBITS: NIL

/TRUE COPY/

P.A. TO JUDGE

SKV

K.RAMAKRISHNAN, J.

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O.P.(C). No.3059 of 2015

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======================= Dated this the 18^th day of July, 2016

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JUDGMENT

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This application is filed by the petitioner challenging Ext.P5 order passed by the court below under Article 227 of the Constitution of India.

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It is alleged in the petition that the respondent herein filed O.S. No.634 of 2006 before the 1^st Additional Sub Court, Ernakulam for fixation of boundaries of plaint A & B Schedule properties with the help of Taluk Surveyor or Village Officer by appointing an Advocate Commissioner and put up boundary stones and also for prohibitory injunction restraining the defendant from damaging or removing the proposed stone laid by the plaintiff. The defendant entered appearance and filed Ext.P1 written statement. The plaintiff filed an application for appointment of a Commissioner to fix the boundaries and accordingly, the Commissioner has been appointed and the Commissioner filed Exts.P2 and P3 report

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O.P.(C). No.3059 of 2015 2

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and plan fixing the boundary of plaint A and B Schedule properties. Ext.P2 report filed along with a sketch and Ext.P3 is the plan obtained from the Taluk Surveyor. Ext.P4 is the photographs showing the construction of a well and a motor shed in the property. The petitioner filed Ext.P5 objection to the Commissioner's report and also filed Ext.P6 application to appoint a new Advocate Commissioner to measure the property again and call for a fresh report. The learned Sub Judge by Ext.P7 impugned order dismissed the application. Aggrieved by the same, the present petition has been filed.

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Heard Shri. P.J. Joseph Panikkassery, learned Counsel appearing for the petitioner and Babu Karukapadath, learned Counsel appearing for the respondent.

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The Counsel for the petitioner submitted that there are discrepancies in the Commissioner's report and certain things, which ought to have been shown by the Commissioner have not been shown in the Commissioner's report. For that purpose, a further report is required in this regard.

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O.P.(C). No.3059 of 2015 3

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On the other hand, the Counsel for the respondent submitted that for the same purpose, a Commissioner was appointed and a Commissioner had measured the property with the help of Village Officer and submitted the report with a plan fixing the boundaries and for the same purpose, another application has been filed, which is not maintainable.

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It is an admitted fact that the suit was filed by the respondent herein for fixation of boundary of the plaint A and B schedule property belong to plaintiff and defendant respectively. It is also an admitted fact that the plaintiff filed I.A.No.5719 of 2013 for appointment of an Advocate Commissioner to fix the boundaries and accordingly, an Advocate Commissioner was appointed. The Commissioner submitted Ext.P2 report along with a plan attached to the same fixing the boundaries. Petitioner/defendant filed Ext.P5 objection to the same, pointing out certain defects in the Commissioner's report and some discrepancies in the extent shown in the property as well. He had also filed Ext.P6

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O.P.(C). No.3059 of 2015 4

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petition for appointing new Commissioner for that purpose. It may be mentioned here that there is no allegations made against the Commissioner for setting aside the Commissioner's report and also for appointing a fresh Commissioner for the same purpose. There is no prayer for remitting the commissioner's report to rectify the mistake. But, it is only a technical irregularity and if it is found that there is necessity for remitting the Commissioner's report for further particulars, then that can be done by the court, even if an application has been filed for fresh Commissioner's report. But, the court below observed that there is no necessity to mention the presence of a well or a pump house or the portion of the property reclaimed in the report, especially when the extent of the property and also the title by which the parties derived title etc. were not in dispute. What is to be decided is, which is the boundary line separating both the properties. On that ground the application has been dismissed. The court below was perfectly justified in coming

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O.P.(C). No.3059 of 2015 5

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to the conclusion that there is no ground made out for setting aside the Commissioner's report and appoint a fresh Commissioner. The allegations are not sufficient as well for that purpose. So considering the circumstances, this Court feels that the petition can be disposed of as follows:-

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The dismissal of Ext.P6 application filed by the petitioner will not stand in the way of the petitioner adducing evidence at the time of trial regarding the reason for not to rely on the present Commissioner's report and if the court is satisfied that further particulars are required for the purpose of adjudicating the claim and fixing the boundary, than for remitting the Commissioner's report on the basis of that evidence, getting an additional report and plan for the purpose of disposal of the case. The observations if any, made by the court below in this impugned order will not be a ground in the order to be passed, later on the basis of evidence to get a further report if, the court is satisfied that a further report is required for proper adjudication of the case. The court below is also directed to consider those aspects untrammelled by the observation made in the impugned order and pass appropriate orders on the basis of evidence to be adduced by the parties at the time of trial on this aspect.

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With the above directions and observations, this

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Original Petition is disposed of. Considering the fact that the case is of the year 2006, court below is directed to take

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O.P.(C). No.3059 of 2015 6

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earnest attempt to expedite disposal of the case as expeditiously as possible, at any rate within six months from

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the date of receipt of a copy of this judgment.

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Registry is directed to communicate the judgment to the

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court below at the earliest.

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Sd/-

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K.RAMAKRISHNAN, JUDGE

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SKV

K C Joseph v. P M Sebastian

Case brief

What is this about?

What did the court decide?

K C Joseph v. P M Sebastian

Case brief

What is this about?

What did the court decide?

What the court decided

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