Allowed

Louis v. Haridasan

Kerala HC1 Mar 2017OP(C)/469/2014

Case brief

AI extract

What is this about?

The High Court of Kerala set aside the lower court's order denying the petition for remittting a commissioner's report for locating a boundary item. The court directed the lower court to direct the commissioner to prepare a fresh plan based on the title deed instead of remitting the earlier report.

What did the court decide?

The order of the lower court remitting the commissioner's report was set aside. The commissioner is directed to prepare a fresh plan, report, and mahazar based on the title deed.

Louis Vs Haridasan — Property and Title | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938

¶5

OP(C).No. 469 of 2014 (O)

¶6

AGAINST THE ORDER IN I.A.NO.3841/2013 IN O.S.NO.964/2008 DATED 24.9.2013 ON THE FILE OF THE MUNSIFF'S COURT, CHAVAKKAD.

¶7

PETITIONERS:

¶8

LOUIS, AGED 67, S/O.VADAKETHALA LASAR, IRINGAPRAM AMSOM, THIRUVENKIDAM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.

¶9

CISILY, W/O.VADAKETHALA LOUIS, IRINGAPRAM AMSOM, THIRUVENKIDAM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.

¶10

BY ADV. SRI.G.SREEKUMAR (CHELUR)

¶11

RESPONDENT:

¶12

HARIDASAN S/O.KUNNATHULLY RAMAN NAIR, THIRUVENKIDAM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT – 680 001.

¶13

BY ADV. SRI.RAJIT

¶14

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

OP(C).No. 469 of 2014 (O)

¶16

APPENDIX

¶17

PETITIONERS' EXHIBITS

¶18

EXT.P1 EXT.P2	A TRUE COPY OF THE PLAINT IN O.S.NO.964 OF 2008 ON THE FILE OF THE MUNSIFF'S COURT, CHAVAKKAD DATED 10.12.08. A TRUE COPY OF THE COMMISSIONER'S REPORT AND PLAN IN EXT.P1 SUIT DATED 30.7.2012.
EXT.P3	A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONERS HEREIN AS I.A.NO.3841 OF 2013 IN EXT.P1 SUIT DATED 13.6.2013.
EXT.P4	A TRUE COPY OF THE ORDER PASSED IN I.A.NO.3841 OF 2013 IN O.S.NO.964 OF 08 DATED 24.9.2013 ON THE FILE OF THE MUNSIFF'S COURT, CHAVAKKAD.

¶19

RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

AHZ/

P.Somarajan, J.

O.P.(C)No.469 of 2014 (O)

¶24

Dated this the 1^st day of March, 2017

¶25

JUDGMENT

¶26

Challenging Ext.P4 order passed by the Munsiff's Court, Chavakkad in I.A.No.3841 of 2013 in O.S.No.964 of 2008, the plaintiffs/petitioners came up with this original petition. The said application in I.A.No.3841 of 2013 was filed for the purpose of remitting back the commissioner's report and plan (Ext.P2) for the purpose of locating item No.1 in the plaint. The suit was filed for fixation of boundary. There are two items in the plaint schedule. Item No.1 is not located or identified by the Advocate commissioner who prepared Ext.P2 report and plan with the assistance of a Taluk Surveyor and this was the reason for filing a second application for remitting back the commissioner's report for the purpose of locating item No.1 in the schedule.

¶27

The objection raised by the respondent is that the prayer in

¶28

the petition is to locate item No.1 based on the description made in the document of title and not in relation to the survey records.

¶29

O.P.(C)No.469 of 2014 (O)

¶30

:: 2 ::

¶31

Issuance of a commissioner is a matter of adducing evidence especially for the purpose of measuring out the property. The commissioner who visited the property prepared Ext.P2 report and plan. As such, it is not at all necessary to remit the plan and report back to the commissioner, but the commissioner can be directed to prepare a fresh plan in accordance with the prayer in I.A.No.3841 of 2013 so that the commissioner and the surveyor can prepare a plan with respect to item No.1 property in the schedule in accordance with the title deed as prayed for by the plaintiffs. The question of acceptance of the report prepared by the commissioner can be adjudicated at the final stage of the suit. As such, I am of the view that it is not at all permissible to deny such a right to the plaintiffs and the lower court has not exercised its jurisdiction in the correct perspective, which warrants interference by this Court.

¶32

In the result, the original petition is disposed of setting aside the order passed by the lower court in I.A.No.3841 of 2013 in O.S.No.964 of 2008. There is no necessity to remit back the report and plan already submitted by the commissioner. Instead, the commissioner is directed to prepare a fresh plan, report and

¶33

O.P.(C)No.469 of 2014 (O)

¶34

:: 3 ::

¶35

mahazar in accordance with what is prayed for by the plaintiffs and such report shall be treated as supplemental to the earlier report, plan and mahazar submitted. The lower court shall, if possible, depute the very same commissioner. But the surveyor should be a serving surveyor from the taluk office concerned. Batta for the commissioner as well as the surveyor shall be fixed by the lower court on getting copy of this judgment. The lower court shall dispose of the suit expeditiously in accordance with the law in force. No order as to costs.

¶36

P. Somarajan Judge

¶37

ahz/

Louis v. Haridasan

Case brief

What is this about?

What did the court decide?

Louis v. Haridasan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Jessy Jaimon Vs State of Kerala

Susan Britto & Others Vs Sosamma Joseph

Super General Company Vs Suresh Thonikkadavu Veedu

Babu Vs Sarala Kumari

The Special Tahsildar.L.a.No.I Vs Kunchamma and Another

Muhammed Haji Vs Muhammedali