Disposed

Minimol v. K.P. Rajagopal

Kerala HC3 Oct 2016OP(C)/318/2016

Case brief

AI extract

What is this about?

This special leave petition under Article 227 sought directions to the Munsiff Court, Cherthala to promptly appoint a commissioner and complete measurement works in an original suit concerning property boundaries. The High Court directed the lower court to ensure the commissioner submits the report within two months and ordered the respondents to cooperate.

What did the court decide?

The Munsiff Court directed to issue direction to the commissioner to complete work and submit report within two months; respondents directed to cooperate.

Minimol Vs K.P. Rajagopal — 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 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938

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OP(C).No. 318 of 2016 (O)

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O.S.NO. 246/2014 OF MUNSIFF COURT, CHERTHALA

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PETITIONER(S) :

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MINIMOL, AGED 46 YEARS,

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W/O. VIDHYA SANKAR, RESIDING AT ANIZHAM, YESORAM NAGAR, EROOR SOUTH, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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BY ADV. SRI.VARGHESE C.KURIAKOSE

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RESPONDENT(S) :

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1. K.P. RAJAGOPAL, S/O. NANAPPAN PILLAI, MANGALATH, GEETHALAYAM, CHERTHALA EAST MURI, KOKOTHAMANGALAM VILLAGE, CHERTHALA TALUK, ALAPPUZHA.

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2. K.P.GIREESH KUMAR, S/O. NANAPPAN PILLAI, MANGALATH, GEETHALAYAM, CHERTHALA EAST MURI, KOKOTHAMANGALAM VILLAGE, CHERTHALA TALUK, ALAPPUZHA.

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3. HAIMAVATHY AMMA, W/O. NANAPPAN PILLAI, MANGALATH, GEETHALAYAM, CHERTHALA EAST MURI, KOKOTHAMANGALAM VILLAGE, CHERTHALA TALUK, ALAPPUZHA.

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4. K.P.GEETHA, AGED 57 YEARS, W/O. SASI, CHAITHRAM, PADIVATTOM, EDAPPALLY P.O., BACKSIDE OF INDIA VISION, KOCHI-24.

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5. K.P.PUSHPALATHA, AGED 55 YEARS, W/O. REGHUNANDANAN, PUTHUPARAMBIL HOUSE, KARUPPAMKULANGARA P.O., PULINCHODE JUNCTION, CHERTHALA.

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..2/-

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..2..

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OP(C).No. 318 of 2016 (O)

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6. K.P.NIRMALA, AGED 53 YEARS, W/O. G.SURESH KUMAR, CHAMPAKKARA HOUSE, VALIYAPARA, KUTHUKUZHY P.O., NEAR VALIYAPARA L.P.SCHOOL, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 691.

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R1 BY ADVS. SRI.T.JAYAKRISHNAN

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SRI.R.KRISHNAKUMAR (CHERTHALA)

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R2 & R3 BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL)

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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OP(C).No. 318 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1	TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S.NO. 246/2014 ON
	THE FILES OF THE HONOURABLE MUNSIFF'S COURT,
	CHERTHALA.

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EXHIBIT P2	TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT.
EXHIBIT P3	TRUE PHOTOSTAT COPY OF THE PARTITION DEED NO. 1835/99 OF SRO CHERTHALA.
EXHIBIT P4	TRUE PHOTOSTAT COPY OF THE EXPARTE ORDER DATED 25-03-2014 IN I.A.NO.1305/14.
EXHIBIT P5	TRUE PHOTOSTAT COPY OF MODIFIED ORDER DATED 03-04-2014 IN I.A.NO. 1305/14.
EXHIBIT P6	TRUE PHOTOSTAT COPY OF THE I.A.NO. 3325/2014 IN O.S.NO. 246/2014 ON THE FILES OF MUNSIFF COURT CHERTHALA.
EXHIBIT P7	TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 02-09-2014 IN OP(C)NO. 2022/2014.
EXHIBIT P8	TRUE PHOTOSTAT COPY OF THE ORDER DATED 10-04-2015 IN I.A.NO. 1087/2015 BEFORE THE HON'BLE ADDL. MUNSIFF'S COURT, CHERTHALA.
EXHIBIT P9	TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 19-06-2015 IN OP(C)NO. 1376/2015.
EXHIBIT P10	TRUE PHOTOSTAT COPY OF THE NOTICE FOR MEASUREMENT DATED 30-10-2015 ISSUED BY ADVOCATE COMMISSIONER.
EXHIBIT P11	TRUE PHOTOSTAT COPY OF THE JUDGMENT IN O.P.(C) NO. 2429/2014.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

K.RAMAKRISHNAN, J.

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O.P.(C) No.318 of 2016

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Dated this the 3^rd day of October, 2016

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JUDGMENT

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This petition is filed by the petitioner seeking intervention of this court to give direction to the commissioner to complete the work within the time frame in O.S.246/2014 of Munsiff Court, Cherthala under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner filed Ext.P1 suit as O.S.246/2014 on the file of the Munsiff Court, Cherthala for permanent prohibitory injunction restraining the defendants 1 to 3 from entering into item No.1 property and committing waste thereon and interfering with the peaceful possession and enjoyment of the rights of the plaintiff.

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Originally the defendants 1 to 3 alone were made parties. Subsequently respondents 4 to 6 were also impleaded. I.A.No.1305/2014 was filed for interim injunction and that was granted. Ext.P2 is the written statement filed by the second respondent. The plaintiff is claiming right to use the pathway as provided in Ext.P3 partition deed, which according to the petitioner is being obstructed by the defendants. Ext.P4 is the interim exparte injunction granted as per order in I.A.1305/2014, which was made absolute which was later modified as per Ext.P5 to the effect that

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O.P.(C) No.318 of 2016

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respondents shall not obstruct the pathway to plaint item No.1 property as mentioned in the partition deed. The petitioner was also directed not to obstruct the use and enjoyment of the item No.2 property by respondents 2 and 3 until further orders. Ext.P6 is the application filed by the petitioner for issue of a commission to locate the pathway mentioned in the partition deed with the help of a surveyor and a commissioner has been appointed. Since the application for impleadment and issue of commissioner were not taken, petitioner approaches this court, but filing O.P.(C)2022/2014 and this court by Ext.P7 judgment directed the court below to expedite disposal of those applications at any rate on or before 15.10.2014 and disposed of the petition. Thereafter again the petitioner approached this court by filing O.P.(C)3076/2015 for issue a direction to the commissioner to file the report and this court by Ext.P9 judgment directed the commissioner to ascertain the things mentioned in Ext.P7 as well as in the counter filed by the respondents and submit the report and plan. The said commissioner had returned warrant vide Ext.P7 memo. Thereafter no fresh commission was appointed. The petitioner filed an application for police protection to implement the injunction order through police and that was not granted by the court

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O.P.(C) No.318 of 2016

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below, against which the petitioner filed O.P.(C)2429/2014 before this court and this court by Ext.P11 order directed the petitioner to file an application under Rule 3A of the Code of Civil Procedure, if the respondents have violated the injunction. If such an application is filed, the court below was directed to expedite that application within two months. The respondents were also directed not to violate the order again and again inviting the court to take action against them. Since no fresh commission was appointed and the report has not been obtained, the petitioner approached this court filing the above petition seeking the following reliefs:

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i. Issue appropriate direction to the Munsiff court, Cherthala to forthwith appoint another advocate commissioner to execute the work notified in Ext.P6 application (I.A.3325/2014) as supplemented by Ext.P9 order and to conclude the process of measurement within a time frame to be stipulated by this Hon'ble court to secure ends of justice to the petitioner.

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ii. Allow the petitioner to recover the full costs incurred for the institution and conduct of the original petition (civil) from respondents.

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After the filing of this petition when it was pointed out that Smt.Deepa was appointed as commissioner on 01.04.2016, the counsel filed a statement dated 23.05.2016 stating that on 01.04.2016 Smt. Deepa has been appointed as commissioner and submitted that Smt. Deepa is not a lawyer, regularly practicing before that court. So this court has called for a report regarding this aspect and the learned

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O.P.(C) No.318 of 2016

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Munsiff has sent a report dated 01.06.2016, which reads as follows:

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“On 1.4.2016 Adv. Smt.Deeparani was appointed as Advocate Commissioner in O.S.246/14. She is a lawyer having regular practice. She represents cases in almost all days in my court. In earlier occasions also, she was appointed as Advocate Commissioner in many cases. In such cases she executed work and filed reports in time. I have personally enquired about her court practice. She has more than 10 years practice in Cherthala court. She ensured that she is available in court as and when required.”

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Heard Sri.Varghese C.Kuriakose, learned counsel appearing for the petitioner, Sri.R.Krishnakumar, Cherthala, counsel appearing for the first respondent and Sri.P.B.Krishnan, counsel appearing for respondents 2 and 3.

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The counsel for the petitioner submitted that in spite of the fact that a commission has been appointed, no report has been filed so far and the measurement was not taken and he wants only a direction to be given to the commissioner to file the report immediately or issue direction to the court below to get the commissioner's report within a time frame. He had also submitted that, the first respondent though lawyer by profession not practicing lawyer is holding a high post in the the ruling party in that locality and misusing his position as a party leader, is not allowing the commissioner or the revenue authorities to

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O.P.(C) No.318 of 2016

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co-operate with the commissioner to complete the work.

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On the other hand, the counsel for the respondents submitted that the allegations are not true.

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It is an admitted fact that the petitioner has filed O.S.246/2014 for injunction restraining the respondents herein from trespassing into the plaint item No.1 property and also not to obstruct the user of the item No.3 pathway which is provided as per Ext.P3 partition deed. It is also in away admitted that earlier an injunction order was granted but subsequently that was modified by the court below evidenced by Ext.P5 order. It is also seen from the documents produced that an earlier commission was appointed, but the commissioner had to return the warrant and subsequently advocate Smt. Deeparani was appointed as commissioner now. The counsel for the respondent submitted that they will co-operate with the measurement of property and they have no intention to obstruct the commissioner from executing her work. So considering the circumstances, this court feels that the petition can be disposed of as follows:

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Learned Munsiff, Cherthala is directed to take steps

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to issue direction to the commissioner to complete the

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O.P.(C) No.318 of 2016

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work with the help of surveyor if any required and submit the report and plan as expeditiously as possible at any rate within two months from the date of receipt of this judgment. If the commissioner files any report complaining of any obstruction made by the respondents in carrying out the work, then court below is directed to give necessary protection to the commissioner to carryout the work in accordance with law. The respondents are also directed to co-operate with the commissioner in executing the work and submit the report and plan within the time specified by this court.

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With the above direction and observation the petition is disposed

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of.

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Registry is directed to communicate this judgment to the court below at the earliest.

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Sd/- (K. Ramakrishnan, Judge)

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//True Copy//

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P.A. to Judge

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Minimol v. K.P. Rajagopal

Case brief

What is this about?

What did the court decide?

Minimol v. K.P. Rajagopal

Case brief

What is this about?

What did the court decide?

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