Allowed

Sri. J. Somarajan v. Sri. Mayadas

Kerala HC18 Jan 2017OP(C)/1849/2016

Case brief

AI extract

What is this about?

This civil revision petition challenged an order regarding the appointment of a commissioner in a partition suit. The High Court set aside the impugned order, held that the Additional Munsiff could remit the original commission, and directed the commission to be remitted to identify the disputed pathway.

What did the court decide?

Impugned order set aside; commission remitted; liberty given to respondents to give work memo on required aspects.

Sri. J. Somarajan Vs Sri. Mayadas — Partition | 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 A.MUHAMED MUSTAQUE

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WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA 1938

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OP(C).No. 1849 of 2016 (O)

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O.S.NO.1179/1998 OF ADDITIONAL MUNSIFF, KOLLAM.

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PETITIONER(S):

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1. SRI. J. SOMARAJAN, AGED 57 YEARS, S/O. JANARDHANAN, BHASI VILASAM, AKKOLIL CHERRY, KOOTIKKADA, MAYYANAD VILLAGE, KOLLAM-691 021.

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2. DR.SASIDHARAN, AGED 64 YEARS, S/O. VAMADEVAN, PALAZHI, MAYYANAD VILLAGE, KOLLAM-691 303.

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3. SRI. K. VIJAYAN, AGED 64 YEARS, S/O. KRISHNAN, CHAITHANYA, ADICHANALLOOR VILLAGE, KOLLAM-691 573.

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4. SMT. SUMAM, AGED 58 YEARS, D/O. ANANDAVALLY, SUMATH, MAYYANDADU, KOLLAM-691 303.

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5. SMT. SABITHA, AGED 55 YEARS, W/O. RAJAN, RAJAGIRI, PATTATHANAM, KOLLAM-691 021.

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6. SMT. SEENA, AGED 50 YEARS, D/O. ANANDAVALLY, ANANDASUDHAM, MAYYANADU, KOLLAM-691 303.

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7. SMT. SUSHA, AGED 48 YEARS, W/O. MURALEEDHARAN, SUDHA BHAVAN, MAYYANAD VILLAGE, KOLLAM-691 303.

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BY ADV. SRI.SREELAL N.WARRIER

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--2--

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--2--

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OP(C).No. 1849 of 2016 (O)

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RESPONDENT(S)/DEFENDANTS:

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1. SRI. MAYADAS, AGED 62 YEARS, S/O. VASUDEVAN, PUTHU VEEDU, MAYYANAD VILLAGE, KOLLAM-691 303.

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2. SRI JAYADAS, AGED 54 YEARS, S/O. VASUDEVAN, PUTHUVEEDU, MAYYANAD VILLAGE, KOLLAM-691 303.

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BY ADV. SRI.K.SUBASH CHANDRA BOSE

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 1849 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXT. P1 : THE TRUE PHOTOCOPY OF REGISTERED PARTITION DEED NO.302/1105 (ME) (1929) OF PUTHUVEEDU THARAWAD.
EXT. P2 : TRUE PHOTO COPY OF PLAINT IN O.S. NO.1179/1998 ON THE FILE OF THE ADDITIONAL MUNSIFF, KOLLAM.
EXT. P3 : ISSUE IN O.S. NO.1179/1998 ON THE FILES OF THE ADDITIONAL MUNSIFF, KOLLAM.
EXT. P4 : TRUE PHOTO COPY OF COMMON JUDGMENT IN FAO NO. 56/2009 AND OTHER CONNECTED APPEALS OF THE HON'BLE HIGH COURT OF KERALA.
EXT. P5 : TRUE PHOTOCOPY OF I.A. NO. 633/2015 IN O.S.NO.1179/1998 ON THE FILE OF THE ADDITIONAL MUNSIFF, KOLLAM.
EXT. P6 : TRUE PHOTO COPY OF OBJECTION IN I.A NO.633/2015 IN -DO- -DO-
EXT. P7 : TRUE PHOTO COPY OF ORDER DATED 11.04.2016 IN I.A NO.633/2015 IN -DO- -DO-

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

A. MUHAMED MUSTAQUE, J.

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O.P.(C) No. 1849 of 2016

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Dated this the 18^th day of January, 2017

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J U D G M E N T

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1.Petitioners are the plaintiffs in OS No.1179/1998 on the

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file of the Additional Munsiff's Court, Kollam. There were two other connected suits originally filed for mandatory injunction. A commissioner was appointed in the matter. The suit was decreed in favour of the petitioners. Anyhow, the matter was carried in appeal. In appeal, the matter was remitted back with observations. This was challenged before this Court. This Court set aside the observations upon remand with liberty to adduce fresh evidence. Thereafter, petitioners filed an application to appoint commissioner. This was dismissed, finding that there is already a commission report and without setting aside the said commission report, a fresh commissioner cannot be appointed.

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2.It is to be noted that as seen from the judgment of this Court, the commissioner had not identified the pathway,

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..2..

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O.P.(C) No. 1849 of 2016

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in respect of which, there exists a dispute. If a fresh commissioner cannot be appointed without setting aside the earlier report, certainly, the court below is not restricted with the power to remit the original commission report in the light of the application now filed by the plaintiffs. There is no embargo under law in doing so, especially, in the light of the permission given by this Court to adduce additional evidence.

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3.In such circumstances, the impugned order is set aside. This Court is of the view that facts and circumstances demand that the commission shall be remitted in the light of the application now filed by the petitioners. However, it is open for the respondents also to give work memo to report on any aspect, which is required, in the light of the judgment of this Court.

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4.With the above observation, the original petition is disposed of.

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Sd/- A. MUHAMED MUSTAQUE JUDGE

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bka/-

Sri. J. Somarajan v. Sri. Mayadas

Case brief

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Sri. J. Somarajan v. Sri. Mayadas

Case brief

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