Allowed

M.a.Hameed v. Smt.Annakkutty

Kerala HC8 Nov 2016OP(C)/575/2015

Case brief

AI extract

What is this about?

The High Court allowed a petition under Article 227 setting aside a lower court order dismissing an application to set aside a commissioner's report. The court remitted the report for remeasurement on the basis of original title deeds and directed expedited disposal.

What did the court decide?

The order dismissing the application to set aside the commissioner's report is set aside; the report is remitted to the commissioner for measurement based on title deeds and work memos.

M.a.Hameed Vs Smt.Annakkutty — Partition | 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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TUESDAY, THE 8TH DAY OF NOVEMBER 2016/17TH KARTHIKA, 1938

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OP(C).No. 575 of 2015 (O)

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O.S.NO.262/2008 OF MUNSIFF’S COURT, ERNAKULAM.

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PETITIONER(S):

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1. M.A.HAMEED, AGED 60, S/O.LATE M.M.ABOOBACKER, MOOTHEDATH HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, PIN - 682013.

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2. M.A.MOHAMMED IQBAL, AGED 48, S/O.LATE M.M.ABOOBACKER, MOOTHEDATHU HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, PIN - 682013.

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BY ADVS.SRI.P.VISWANATHAN SRI.SUNIL N.SHENOI

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RESPONDENT(S):

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1. SMT.ANNAKKUTTY, AGED ABOUT 88, W/O.CHAURO, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, PIN-682013.

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2. P.C.RAJAN, AGED ABOUT 48, S/O.CHAURO, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, PIN-682013.

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3. SMT.STELLA, AGED ABOUT 53, D/O.CHAURO, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, PIN-682013.

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--2--

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--2--

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OP(C).No. 575 of 2015 (O)

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4. SMT.SANTHA, AGED ABOUT 41, D/O.CHAURO, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, PIN-682013.

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5. SRI.SHIBU, AGED ABOUT 43, S/O.CHAURO, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, PIN-682013.

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6. MRS.SHEEBA, AGED ABOUT 38, W/O.LATE DASAN, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, PIN-682013.

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7. MASTER ABHAY DAS, AGED ABOUT 19, S/O.LATE DASAN, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, PIN-682013.

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8. MASTER AJAY DAS, AGED ABOUT 15, S/O.LATE DASAN, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, REPRESENTEED BY HER MOTHER AND NATHURAL GUARDIAN MRS.SHEEBA, W/O.LATE DASAN, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK PIN-682013.

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9. MISS.ALANA DAS, AGED ABOUT 14, D/O.LATE DASAN, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN MRS.SHEEBA, W/O.LATE DASAN, PULIKAL HOUSE, PANDIPARAMBIL, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK PIN-682013.

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R2, R5 TO R8 BY ADVS.SRI.K.C.CHARLES

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SRI.M.POLY MATHAI SRI.VIMAL K.CHARLES

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 575 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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P1:THE TRUE PHOTOSTAT COPY OF THE SALE DEED NO 1402 OF 1962 OF S R O EDAPPALLY.

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P2:THE TRUE PHOTOSTAT COPY OF THE PARTITION DEED NO 4783 OF 1987 OF S R O EDAPPALLY.

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P3:THE TRUE PHOTOSTAT COPY OF THE PLAINT IN OS NO 262 OF 2008 ON THE FILE OF MUNSIFF'S COURT, ERNAKULAM.

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P4:THE TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT IN OS NO 262 OF 2008 ON THE FILE OF MUNSIFF'S COURT, ERNAKULAM.

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P5:THE TRUE PHOTOSTAT COPY OF THE COMMISSION APPLICATION AS IA 1637 OF 2008 TO MEASURE OUT THE PLAINT SCHEDULE PROPERTIES WITH THE ASSISTANCE OF THE COMPETENT SURVEYOR.

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P6:THE TRUE PHOTOSTAT COPY OF THE COMMISSION REPORT DTD 26/5/2012 IN OS NO 262 OF 2008 ON THE FILES OF THE MUNSIFF'S COURT, ERNAKULAM.

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P6A:- THE TRUE PHOTOSTAT COPY OF THE PLAN IN OS NO 262 OF 2008 ON THE FILES OF THE MUNSIFF'S COURT, ERNAKULAM.

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P6B:- THE TRUE PHOTOSTAT COPY OF THE PLAN IN OS NO 262 OF 2008 ON THE FILES OF THE MUNSIFFS COURT, ERNAKULAM.

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P7:THE TRUE PHOTOSTAT COPY OF THE APPLICATION TO SET ASIDE THE COMMISSION REPORTS AND PLAN AS IA NO 3595 OF 2012.

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P8:THE TRUE PHOTOSTAT COPY OF THE ORDER DTD 15/12/2014 PASSED BY THE TRIAL COURT IN IA NO 3595 OF 2012.

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RESPONDENT(S)' EXHIBITS: NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

K.RAMAKRISHNAN, J.

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O.P.(C) No.575 of 2015

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Dated this the 8^th day of November, 2016

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JUDGMENT

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This petition has been filed by the petitioner challenging Ext.P8 order passed by the court below, rejecting the application to set aside the commissioners report and plan under Article 227 of the Constitution of India.

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The petitioners herein as plaintiffs filed Ext.P3 suit for fixation of southern boundary of plaint-A and B schedule properties and for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property or demolishing the boundary marks erected on the basis of the survey conducted by the surveyor and causing any obstruction to the construction of the compound wall along the boundary line that may be fixed by the court. According to the petitioner, the plaint schedule properties along with the other properties originally belong to one M.M. Aboobakar, which he obtained as per Ext.P1 sale deed. On the death of Aboobakar, his wife and children partitioned the property as per partition deed No.4783/1987 of S.R.O. Edappally evidenced by Ext.P2 and the property prescribed as schedule-B to Ext.P2 was allotted to the first plaintiff which was shown as plaint-A schedule and the property scheduled as - A to the said document was allotted to the mother of the plaintiffs, Kunjamma, who in turn gifted the same to the

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O.P.(C) No.575 of 2015

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2^nd plaintiff as per gift deed No.2307/1994 of S.R.O., Edappally, which is shown as B-schedule to the plaint. The property on the southern side of the plaint schedule property originally belong to one Chouro, who sold certain extent of the same to different persons including one Sebastian which is on the southern side of plaint-A schedule property. After the purchase of the said property, said Sebastian constructed a compound wall on the northern boundary of his property and the remaining property held by Chouro lies on the southern boundary of plaint-A and B schedule properties. There was an old fencing on the boundary separating the properties. Out of the remaining properties, Chouro sold 7 cents of property to one Dasan, who died in 2006 and defendants 6 to 10 are his legal heirs. Chouro also sold 6.800 cents to 2^nd defendant. When they tried to trespass into the plaint schedule property, the present suit/Ext.P3 has been filed as O.S.262/2008, claiming the relief mentioned above.

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Defendants filed Ext.P2 written statement contenting that there was no trespass and they have no objection in fixing the boundary of plaint schedule properties on the basis of side measurement going by the title deeds. According to them, the compound wall constructed by Sebastian is not the actual boundary and Chouro has properties on the north of the compound wall also. Plaintiffs filed I.A.1637/2008 to measure the plaint schedule properties

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O.P.(C) No.575 of 2015

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with the assistance of the competent surveyor and the same was allowed and the commissioner submitted Exts.P6, P6(a) and P6(b) report and plans. The commissioner has not properly measured the properties on the basis of title deeds. Plaintiffs filed I.A.3595/2012 to set aside the commissioner's report as Ext.P7 and the court below by Ext.P8 order dismissed the application. Aggrieved by the same, the present petition has been filed under Article 227 of the Constitution of India.

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Heard Sri.P.Viswanathan, counsel appearing for the petitioner and Sri.K.C.Charles, counsel appearing for the respondents 2, 5 to 8 and others remained absent.

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When the petition came up for hearing today, the counsel for the appearing respondents submitted that they have no objection in remitting the commissioner's report for the purpose of measuring the property on the basis of the original partition deed by which the plaintiff obtained the property to identify the property which is required for proper identification of the property and for that purpose the earlier commissioner's report need not be set aside.

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The counsel for the petitioner also wanted that relief only. The court below dismissed the application on the ground that there is no ground made out for setting aside the commissioner's report. The basic title deed on the basis of which the plaintiffs claimed the plaint

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O.P.(C) No.575 of 2015

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schedule properties is the partition deed produced as Ext.P2. So in order to ascertain the location of the plaint schedule properties, the property has to be measured on the basis of the basic title deed namely Ext.P2 on the basis of which they derived title to the property.

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Since the respondent has also no objection in allowing the prayer to measure the property, for that purpose, the commissioner's report already submitted need not be set aside and the same can be remitted to the commission for measuring the property on the basis of the partition deed also and locate the properties of the plaintiffs and defendants on the basis of their respective title deeds and submit a plan and report to the court below. So the order passed by the court below, dismissing the application is set aside to the extent dismissing the entire application, but while confirming the reasons stated by the court below that the report need not be set aside, but this court feels that, that can be allowed in part by remitting the commissioner's report to the commissioner to measure the property on the basis of Ext.P2 partition deed and also on the basis of the document of title of the defendants and also submit further plan and report on that basis. Both parties are permitted to file necessary work memo before the commissioner to ascertain the facts regarding the facts to be ascertained by the commissioner and report the same in the plan and the report and the commissioner can consider those aspects also and

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O.P.(C) No.575 of 2015

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then answer the same in the report and plan and file a report on the basis of the measurement with the help of the surveyor. The lower court is directed to remit the commissioner's report to the same commissioner with a direction to measure the property with the help of the surveyor and locate the property on the basis of Ext.P2 partition deed and other title deeds of the defendants on the basis of which they claimed right on the property and also on the basis of the work memo to be submitted by both the parties to the commissioner and then direct the commissioner to file the report and plan within a time frame, considering the fact that the case is of the year 2008 and after getting the report, the court below is directed to expedite disposal of the suit at the earliest possible time, considering the case is of more than five year old and priority must be given for disposal of such cases.

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With the above direction and observation the petition is allowed and disposed of accordingly.

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Interim order of stay granted is vacated.

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Registry is directed to communicate the 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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M.a.Hameed v. Smt.Annakkutty

Case brief

What is this about?

What did the court decide?

M.a.Hameed v. Smt.Annakkutty

Case brief

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What did the court decide?

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