The Court restored a dismissed I.A. for a Commissioner and Surveyor, directing the lower court to reconsider it after affording evidence opportunities, unaffected by prior observations.
IA No.1155/2014 restored to file for fresh orders without being hampered by prior observations.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 7TH DAY OF JUNE 2018 / 17TH JYAISHTA, 1940
OP(C).No. 1132 of 2018
I.A.NO.861/2017 IN O.S.NO. 194/2009 OF MUNSIFF MAGISTRATE COURT, SASTHAMCOTTA
PETITIONER(S)/PETITIONER/ PLAINTIFF :
SMT.RAGHUVATHY, D/O.PARUKUTTY, AGED 52 YEARS, OTTAPLAVILAVEEDU, IVERKALA, PADINJATTINKARA, VADAKKEMURI, KUNNATHUR VILLAGE, KUNNATHUR TALUK KOLLAM DISTRICT- 690 540.
BY ADV.SRI.N.UNNIKRISHNAN
RESPONDENT(S)/RESPONDENTS/ DEFENDANTS:
1. SMT.SUDHARMA,
2. SHRI RAVI
3. SHRI RAVI,
HUSBAND OF LATE SUDHARMA, AGED 56 YEARS, KANNANKARASSERI, IVERKALA, PADINJATTINKARA, VADAKKEMURI, KUNNATHUR VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT- 690 540.
4. SHRI RENJITH, S/O. RAVI, AGED 33 YEARS, KANNANKARASSERI, IVERKALA, PADINJATTINKARA, VADAKKEMURI, KUNNATHUR VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT- 690 540.
..2/-
..2..
OP(C).No. 1132 of 2018
5. SHRI ANEESH, S/O. RAVI, AGED 29 YEARS, KANNANKARASSERI, IVERKALA, PADINJATTINKARA, VADAKKEMURI, KUNNATHUR VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT- 690 540.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
11.06.2018
OP(C).No. 1132 of 2018 (O)
APPENDIX
| PETITIO | **NER(S)' ** | EXHIBITS | |
|---|---|---|---|
| EXHIBIT | P1 | A TRUE | COPY OF PLAINT IN O.S NO.184/2009. |
| EXHIBIT | P2 | A TRUE | COPY OF PLAINT IN O.S NO.194/2009. |
| EXHIBIT |
P3 |
A TRUE BLOCK N TALUK, DIRECTO |
COPY OF RE-SURVEY PLAN (FIELD NO.118- O.17 IN KUNNATHUR VILLAGE, KUNNATHUR KOLLAM DISTRICT ISSUED BY THE ASSISTANT R OF SURVEY & RECORDS (MAPPING), KOTTAYAM. |
| EXHIBIT |
P4 |
A TRUE KUNNATH MANGATT THE SEC |
COPY OF PANCHAYAT PROPERTY REGISTER OF UR GRAMA PANCHAYAT IN RESPECT OF USERRI MUKH- NATTISSERI ROAD ISSUED BY RETARY, KUNNATHUR GRAMA PANCHAYAT. |
| EXHIBIT | P5 | A TRUE | COPY OF COMMISSION REPORT AND SKETCH PLAN. |
| EXHIBIT |
P6 |
A TRUE O.S NO. |
COPY OF OBJECTION DATED 29.09.2014 IN 194/2009. |
| EXHIBIT | P7 | A TRUE | COPY OF I.A NO.1155/2014 IN O.S NO.194/2009. |
| EXHIBIT | P8 | A TRUE | COPY OF I.A NO.1336/2017 IN O.S NO.194/2009. |
| EXHIBIT |
P9 |
A TRUE I.A NO. |
COPY OF ORDER DATED 14.11.2017 IN 1336/2017 IN O.S NO.194/2009. |
| EXHIBIT |
P10 |
A TRUE I.A NO. |
COPY OF ORDER DATED 27.11.2017 IN 861/2017 IN O.S NO.194/2009. |
RESPONDENT(S)' EXHIBITS :
NIL
//TRUE COPY//
P.S.TO JUDGE
Msd. 11.06.2018
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = O. P. (C) No.1132 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 7th day of June, 2018
J U D G M E N T
The plaintiff in a suit for fixation of boundary and injunction is before this Court challenging the dismissal of the application for issuance of an Advocate Commissioner and Surveyor. The reason given by the court below for dismissal of the application is that there is another Commission Report and Plan available in the case. In fact, the petitioner had filed I.A. No.1155/2014 to set aside the said Commission Report and Plan. Though evidence was taken on the said application, it appears that it happened to be dismissed. In the meanwhile, based on the decision rendered by a Division Bench of this Court in Francis Assissi v. Sr. Breesiya [2017 (1) KLT 1041] , the petitioner filed I.A. No.861/2017 seeking appointment of a fresh commission. It is presumably in view of the said decision that the petitioner did not prosecute
O. P. (C) No.1132 of 2018 :- 2 :-
I.A. No.1155/2014 further. Be that as it may, I
feel that it will be sufficient if I.A. No.1155/2014 be restored and considered on its merits.
The original petition is disposed of as above.
Sd/-
SATHISH NINAN JUDGE
kns/-
//True Copy//
P.S. to Judge
O. P. (C) No.1132 of 2018
:- 3 :-
2 issues framed by the court
Whether the application for Commissioner and Surveyor should be restored for reconsideration.
How the fresh commission appointment decision affects the stayed I.A.
Colour shows how this judgement treated each authority
Francis Assissi v. Sr. BreesiyaReferred¶43
Francis Assissi v. Sr. Breesiya [2017 (1) KLT 1041]
SUDHARMA
RAVI
RENJITH
ANEESH
SATHISH NINAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
SATHISH NINAN
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