Petition under Article 227 challenging dismissal of commission application in title suit. Court held no illegality or infirmity; application dismissed as reliefs not modified to warrant survey, lacking merit.
Petition dismissed in limine; High Court found no reason to interfere with the order dismissing the commission application.
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
THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938
OP(C).No. 3146 of 2016 (O)
IA.NO.1180/2016 IN OS 87/2014 OF MUNISIFF COURT, PATTAMBI
PETITIONER(S):
IDOL OF SREE ASURAMAHAKALAN TEMPLE KAKKIDIPURAM DESAM, ALANGODE AMSOM, PONNANI TALUK, REPRESENTED BY NEXT FRIEND SANKUNNIKUTTY, S/O.KOTTAYIL JANAKI AMMA, KAPPOOR AMSOM, ERAVAKKAD DESOM, PATTAMBI TALUK, PALAKKAD DISTRICT.
BY ADV. SRI.P.K.MOHANAN(PALAKKAD)
RESPONDENT(S):
1. MUHAMMEDKUTTY, AGED 64 YEARS, S/O.CHERIYATHUVALAPPIL AHAMMED, KAPPOOR AMSOM, ERAVAKKAD DESOM, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN: 679 552. 2. MUHAMMEDUNNI, AGED 61 YEARS, BROTHER OF 1ST RESPONDENT, KAPPOOR AMSOM, ERAVAKKAD DESOM, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN: 679 552.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
OP(C).No. 3146 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
| EXT.P1 | TRUE COPY OF THE PLAINT DATED 26/3/2014 IN OS NO.87/2014 ON THE FILE OF MUNSIFF-MAGISTRATE COURT, PATTAMBI, INSTITUTED BY THE PETITIONER/PLAINTIFF. |
|---|---|
| EXT.P2 |
TRUE COPY OF THE WRITTEN STATEMENT DATED 4/2/2015 FILED BY ADVOCATE COMMISSIONER PRASD K. OS NO.87/2014 ON THE FILE OF MUNSIFF-MAGISTRATE COURT, PATTAMBI |
| EXT.P3 | TRUE COPY OF THE COMMISSIONER'S REPORT AND SKETCH DATED 4/2/2015 FILED BY ADVOCATE COMMISSIONER PRASAD.K OS NO.87/2014 ON THE FILE OF MUNSIFF-MAGISTRATE COURT, PATTAMBI |
| EXT.P4 | TRUE COPY OF THE AFFIDAVIT DATED 11/12/2015 FILED IN SUPPORT OF THE COMMISSION APPLICATION |
| EXT.P5 |
TRUE COPY OF THE ORDER DATED 4/1/2016 IN I.A NO.1467/2015 OS NO.87/2014 MUNSIFF-MAGISTRATE COURT, PATTAMBI |
| EXT.P6 | TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 4/7/2016 IN O.P.(CIVIL) NO.1489/2016 |
| EXT.P7 |
TRUE COPY OF THE PETITION I.A NO.1180/2016 IN OS 87/2014 DATED 20/8/2016 FILED BEFORE MUNSIFF COURT, PATTAMBI. |
| EXT.P8 |
TRUE COPY OF THE PETITION IA NO.1173/2016 IN OS 87/2014 DATED 20/8/2016 FILED BEFORE MUNSIFF COURT, PATTAMBI. |
| EXT.P9 |
TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS TO I.A NO.1180/2016 IN OS NO.87/2014 DATED 7/10/2016 ON THE FILE OF MUNSIFF COURT, PATTAMBI. |
| EXT.P10 |
TRUE COPY OF THE ORDER OF THE MUNSIFF, PATTAMBI DATED 19/11/2016 IN I.A NO.1180/2016 IN OS NO.87/2014. |
RESPONDENT(S)' EXHIBITS
NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
K. RAMAKRISHNAN, J.
....................................... O.P.(C).No.3146 of 2016
Dated this the 8th day of December, 2016.
JUDGMENT
This is a petition filed by the petitioner challenging Ext.P10 order passed by the court below under Article 227 of the Constitution of India.
O.P.(C).No.3146 of 2016 2
are modified. On that basis, the petitioner filed Ext.P7 application for measuring the property with the help of the surveyor on the basis of Adangal extract and also such other things that may be asked for by the plaintiff. The respondent filed Ext.P8 objection to the same stating that for the same purpose earlier a commission application has been filed and that has been dismissed which was confirmed by this court. So there is no necessity to sent a common again. The court below by Ext.P10 order dismissed the application. Aggrieved by the same, the present petition has been filed.
O.P.(C).No.3146 of 2016 3
the location of the property and improvements therein and also
the presence of location of the house of the respondent etc. The plaintiff earlier filed IA.No.1467/2015 evidenced by Ext.P4 for appointment of a commission to measure the property with the help of a surveyor and locate the boundaries of the properties. That petition was dismissed by the court below by Ext.P5 order wherein it has been specifically mentioned that the suit is one for recovery of possession on the strength of title and not for fixation of boundary and there is no necessity for the commission. Further the extent of the property was not mentioned by the plaintiff in the plaint also. So under such circumstances, the court below came to the conclusion that there is no necessity for a survey commission and dismissed the application. That was challenged by the petitioner by filing OP(C).No.1489/2016 before this court and this court by Ext.P6 judgment dismissed the application stating that there is no illegality committed by the court below and no survey commission is warranted for deciding the case. But it is observed that it is made clear that this order will not stand in the way of appointment of the commission in case reliefs are modified. It is thereafter that the present application has been filed for the purpose of calling for report on the following aspects:
O.P.(C).No.3146 of 2016 4
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O.P.(C).No.3146 of 2016
5
the court, then this order will not be a bar for the petitioner to do the same and not that instead of surveyor measure the property with the help of the village assistant is not the relief modified as observed in the judgment of this court in Ext.P6. So under such circumstances, the court below was perfectly justified in dismissing the application as there is no change of circumstances made out or any relief has been modified in the plaint warranting a commission to be taken for identification of the property etc and rightly dismissed the application. This court do not find any reason to interfere with the order passed by the court below as no illegality has been committed and that is not suffering any infirmity to be corrected by this court invoking Article 227 of the Constitution of India. The petition lacks merit and the same is dismissed in limine.
Registry is directed to communicate a copy of this judgment to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl
1 issue framed by the court
Whether the High Court should interfere under Article 227 with the Munsiff Court's order dismissing a petition for appointment of a survey commission as there is no change of circumstances or modifica
2 provisions across 1 enactments
Idol of Sree Asuramahakalan Temple Kakkidipuram Desam, Alangode
Muhammed Kutty
Muhammed Unni
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
