Dismissed

Gangadharan v. v.K.Narayanan

Kerala HC20 Mar 2017OP(C)/1081/2013

Case brief

AI extract

What is this about?

The High Court at Ernakulam, in Original Petition No. 1081 of 2013 (O), dismissed the petition challenging a lower court order rejecting a commission application for survey in an injunction suit. The Court held that as the suit lacks a prayer for boundary fixation, a survey commission is unnecessary, though parties may amend their pleadings.

What did the court decide?

Original Petition No. 1081 of 2013 (O) dismissed. No costs.

Gangadharan Vs v.K.Narayanan — Property and Title | Kerala HC (2017)

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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 P.SOMARAJAN

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MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938

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OP(C).No. 1081 of 2013 (O)

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PETITIONERS:

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GANGADHARAN, MAVUPRATHAYAM THERAKAM VEEDU,

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NELLIKALA P.O., KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, PATHANAMTHITTA DISTRICT.

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VISWAMBHARAN, MAVUPRATHAYAM THERAKAM VEEDU,

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NELLIKALA P.O., KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, PATHANAMTHITTA DISTRICT.

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BY ADVS.SRI.N.SUKUMARAN (SR.) SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.S.SHYAM

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RESPONDENTS:

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V.K.NARAYANAN, VENGOLICKAL VEEDU, NELLIKKALA P.O., KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, PATHANAMTHITTA DISTRICT, PIN 686 643

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AJAYAKUMAR, VENGOLICKAL VEEDU, NELLIKKALA P.O., KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, PATHANAMTHITTA DISTRICT, PIN 689 643.

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R1,R2 BY ADV. SRI.JACOB P.ALEX R1,R2 BY ADV. SRI.JOSEPH P.ALEX

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 1081 of 2013 (O)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P1	TRUE COPY OF THE PLAINT DATED 28.2.2008 IN O.S.NO.132/2008 OF THE MUNSIFF'S COURT, PATHANAMTHITTA.
EXT.P2	TRUE COPY OF THE COMMISSION APPLICATION I.A.NO.615/2008 IN O.S.NO.132/2008 DATED 28.2.2008 OF THE MUNSIFF'S COURT, PATHANAMTHITTA.
EXT.P3	TRUE COPY OF THE COMMISSION REPORT DATED 10.3.2008 FILED IN EXT.P2 PETITION.
EXT.P4	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN EXT.P1 CASE.
EXT.P5	TRUE COPY OF THE COUNTER CLAIM FILED BY THE DEFENDANTS IN EXT.P1 CASE DATED 7.6.2008.
EXT.P6	TRUE COPY OF I.A.NO.1508/2009 FILED IN EXT.P1 CASE DATED 7.7.2009.
EXT.P7	TRUE COPY OF THE OBJECTION DATED 10.11.2009 IN EXT.P6 PETITION.
EXT.P8	TRUE COPY OF THE ORDER DATED 20.10.2010 IN EXT.P6 PETITION.
EXT.P9	TRUE COPY OF THE JUDGMENT OF THIS COURT IN O.P.(C) NO.841/2011 DATED 21.11.2011.
EXT.P10	TRUE COPY OF THE ORDER DATED 4.1.2013 IN I.A.NO.1508/2009 IN O.S.NO.132/2008 ON THE FILES OF THE MUNSIFF'S COURT, PATHANAMTHITTA.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

AHZ/I

P.Somarajan, J.

O.P.(C) No.1081 of 2013 (O)

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Dated this the 20^th day of March, 2017

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JUDGMENT

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Challenge is against the order dated 4.1.2013 in I.A.No.1508 of 2009 in O.S.No.132 of 2008 of the Munsiff's Court, Pathanamthitta, by the defendants under Article 227 of the Constitution of India. The said application was filed by the defendants for appointment of a commission to measure out the counter claim schedule property and the adjoining thodu (natural stream) and also to locate the boundary separating the thodu and the property of the defendants, the counter claim schedule property. The counter claim raised in the suit is only for an injunction simplicitor against trespass. No prayer for fixation of boundary is included in the counter claim. The present suit was also filed for injunction simplicitor. The commission application was dismissed by the lower court mainly on the ground that earlier a commissioner visited the property and prepared mahazar, rough sketch and report showing the width and length of the stream passing adjoining to the

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O.P.(C) No.1081 of 2013 (O)

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:: 2 ::

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property of both the plaintiffs and defendants and as such it was observed by the lower court that a second commission for surveying the property is not all necessary in the nature of the suit and the dispute involved in the suit.

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When the matter taken up for hearing today, the learned counsel for the petitioners/defendants fairly submitted that there is no substantial prayer in the suit either for declaration or for fixation of boundary with that of the adjoining property or the adjoining stream. If there is no such prayer to fix the boundary with the adjoining stream or property, no purpose will be served by measuring out the property or locating the property with the help of a surveyor. Since the present suit is one for injunction simplicitor, issuance of a survey commission will not serve any purpose. Further in an injunction suit a permanent prohibitory injunction can be granted only when there is specific boundary. In the absence of a specific boundary, there should be a prayer for fixation of boundary. Otherwise, no decree can be granted. In the said circumstances, the learned counsel pressed for remand of the matter to the lower court so as to enable him to amend the plaint incorporating a prayer for fixation of

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O.P.(C) No.1081 of 2013 (O)

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:: 3 ::

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boundary and to have a report, mahazar and plan after surveying the property through the survey commission. But, from the nature of the suit and the counter claim, at present it is not at all necessary to remand the matter back to the lower court. But, the plaintiffs and defendants are at liberty to apply for amending the suit or the counter claim for the purpose of incorporating a prayer for fixation of boundary and in that situation, needless to say that issuance of a survey commission is highly necessary so as to resolve the dispute.

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Without prejudice to the abovesaid right, the original petition is hereby dismissed. No costs.

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P. Somarajan Judge

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ahz/

Gangadharan v. v.K.Narayanan

Case brief

What is this about?

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Gangadharan v. v.K.Narayanan

Case brief

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