Allowed

BSNL Rep. by Divisional Engineer v. Georgekutty

Kerala HC10 Mar 2017OP(C)/3095/2014

Case brief

AI extract

What is this about?

The High Court, exercising writ jurisdiction, allowed the petitioner's petition challenging the lower court's closure of the survey process. The Court set aside the impugned order, directed a fresh survey commission based on available survey plans and title documents, and fixed a six-month deadline for disposal.

What did the court decide?

This petition is allowed. The order of the lower court is set aside. A fresh Survey Commission is ordered for locating properties based on old and re-survey plans. Disposal within six months.

BSNL Rep. by Divisional Engineer Vs Georgekutty — 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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FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938

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OP(C).No. 3095 of 2014 (O)

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AGAINST THE ORDER IN I.A. No.452/2014 IN O.S. No.5/2004 OF THE SUB COURT, KATTAPPANA, DATED 08.10.2014

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PETITIONER : -

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BHARATH SANCHAR NIGAM LIMITED REPRESENTED BY DIVISIONAL ENGINEER, TELECOM, BHARATH SANCHAR NIGAM LIMITED,

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KATTAPPANA, IDUKKI DISTRICT - 685508.

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BY ADV. SRI.K.M.JAMALUDHEEN

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RESPONDENTS : -

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GEORGEKUTTY, AGED ABOUT 52 YEARS, S/O.MATHAI, RESIDING AT VILAYIL THEKKETHIL (PALISSERY) HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE, IDUKKI DISTRICT - 685508.

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ROY, S/O.THOMAS, AGED ABOUT 39 YEARS, RESIDING AT PULIMPARAMBIL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE, IDUKKI DISTRICT - 685508.

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PHILIP, S/O.THOMAS, AGED ABOUT 49 YEARS, RESIDING AT PULIMPARAMBIL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE, IDUKKI DISTRICT - 685508.

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KRISHNANKUTTY, S/O.UMMINIKRISHNANKUTTY, RESIDING AT PUTHANPURACKAL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE, IDUKKI DISTRICT - 685508.

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R1 BY ADV. SRI.A.C.DEVASIA

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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PETITIONER'S EXHIBITS : -

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EXT.P-1 :	TRUE COPY OF THE SALE DEED NO.2268/1985 OF KATTAPPANA SUB REGISTRY.
EXT.P-2 :	TRUE COPY OF THE APPLICATION FOR APPOINTING THE ADVOCATE COMMISSIONER.
EXT.P-3 :	TRUE COPY OF ADVOCATE COMMISSIONER'S REPORT WITH ROUGH SKETCH.
EXT.P-4 :	TRUE COPY OF ADVOCATE COMMISSIONER'S REPORT WITH ROUGH SKETCH.
EXT.P-5 :	TRUE COPY OF THE PLAINT IN OS NO.5/2004.
EXT.P-6 :	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE IST DEFENDANT.
EXT.P-7 :	TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE IST DEFENDANT.
EXT.P-8 :	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 2 AND 3.
EXT.P-9 :	TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE 3RD DEFENDANT.
EXT.P-10:	TRUE COPY OF THE REPLICATION FILED BY THE PLAINTIFF TO EXT.P9.
EXT.P-11 :	TRUE COPY OF THE JUDGEMENT OF THE DISTRICT COURT, THODUPUZHA IN AS NO.32/2008.
EXT.P-12 :	TRUE COPY OF THE APPLICATION I.A.NO.102/2012 FOR APPOINTING ADVOCATE COMMISSIONER.
EXT.P-13 :	TRUE COPY OF THE REPORT AND PLAN FILED BY THE ADVOCATE COMMISSIONER IN IA NO.102/2012.
EXT.P-14 :	TRUE COPY OF THE OBJECTION TO THE ADVOCATE COMMISSIONER'S REPORT AND PLAN.
EXT.P-15 :	TRUE COPY OF THE I.A NO.452/2014.
EXT.P-16 :	TRUE COPY OF THE OBJECTION FILED BY THE IST DEFENDANT TO EXT.P15.

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OP(C).No. 3095 of 2014 (O)

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EXT.P-17 : TRUE COPY OF THE DEPOSITION OF THE ADVOCATE COMMISSIONER.

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EXT.P-18 : TRUE COPY OF THE ORDER OF THE SUBORDINATE JUDGES COURT IN IA NO.452/2014 IN OS NO.5/2004 DATED 8.10.2014.

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RESPONDENTS' EXHIBITS : - NIL.

// TRUE COPY //

P.A. TO JUDGE

DMR/-

P. SOMARAJAN, J.

O.P.(c) No. 3095 of 2014

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Dated this the 10^th day of March, 2017

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JUDGMENT

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Aggrieved by Exhibit P18 order in I.A.No.452 of 2014 in

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O.S.No.5 of 2004 of Sub Court, Kattappana, the plaintiff/petitioner came up with this petition under Article 227 of the Constitution of India. The challenge is against the rejection of Exhibit P16 application filed for remitting back the Commissioner's report, plan and mahazar to the very same Commissioner and Surveyor for rectifying the mistake crept in the plan and also to locate the properties in accordance with the survey plan. The suit was filed for fixation of boundary. It was earlier dismissed on merit. It was taken up before the first appellate court and the first appellate court set aside the decree and judgment and remanded the matter back to the lower court with a direction to issue a fresh commission to locate the property. This has resulted in Exhibit P15 application by the plaintiff. The Commissioner is also examined and the deposition is produced and marked as Exhibit P17. The objection to the Commissioner's report is also produced and marked as Exhibit P14. It is fairly submitted by both the

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O.P.(c) No. 3095 of 2014

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counsel that the property in dispute was not properly identified or located by the Commissioner and it has come out at the time of examination of the Commissioner. The main objection raised by the learned counsel for the respondents is that the suit was instituted in the year 2004 and it was unnecessarily dragged and this is the third application submitted by the very same plaintiff for the very same purpose and that so far they have not opted to produce a certified copy of the survey plan or survey records pertaining to the property either under the old survey or under the re-survey. It was also submitted that to the knowledge of plaintiff no such plan is available with the survey authorities. It is not at all permissible to accept such a contention because of the reason that the property involved in the dispute is not at all an un-surveyed property. It is fairly submitted by both the counsel that the property was resurveyed. If that be so, there should be old survey plan and resurvey plan pertaining to the property with the Taluk Survey Office as well as in the Office of Superintendent of Survey and Records, Thiruvananthapuram. Even litho plan is also available with the Office of Survey and Records,

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O.P.(c) No. 3095 of 2014

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Thiruvananthapuram. So the parties are at liberty to apply and obtain certified copies of old and re-survey plans for which the lower court shall issue direction, if it is found necessary, on any application submitted by either of the parties. It is also not at all necessary to remit back the survey report and plan to the Commissioner, instead of that the Commissioner can be asked to prepare a fresh report, plan and mahazar by taking into consideration of survey plans, document title and other relevant documents with the assistance of a Surveyor. For that purpose, I am of the view that it is fit and proper in the interest of justice to set aside the order of the lower court and I do so.

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In the result, this petition is allowed. The order of the lower court is set aside. The lower court shall issue a fresh Survey Commission for the purpose of locating the plaint schedule properties ad the properties of the defendant, if so required, based on the old and re-survey plans, as well as the document of title and shall dispose of the matter within a period of six months from the date of receipt of a copy of this judgment. Specific direction shall be issued to the

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O.P.(c) No. 3095 of 2014

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Commissioner and Surveyor to complete their work within one month and, if possible, direct the Surveyor to obtain a certified

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copy of survey plan pertaining to the property. No order as to costs.

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P. SOMARAJAN, JUDGE

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DMR/-

BSNL Rep. by Divisional Engineer v. Georgekutty

Case brief

What is this about?

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BSNL Rep. by Divisional Engineer v. Georgekutty

Case brief

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