Dismissed

P.v.Sasidharan v. Nirman

Kerala HC16 Oct 2018OP(C)/96/2015

Case brief

AI extract

What is this about?

This Original Petition under Article 227 sought redressal for the rejection of an application to remit a Commissioner's report to prepare a survey plan with accurate boundary descriptions. The Court permitted the possibility of a fresh commission for boundary fixing without remitting the existing report but dismissed the writ petition.

What did the court decide?

The petition was dismissed with reservation for the petitioner's right to file an amendment application for a fresh commission.

P.v.Sasidharan Vs Nirman — Property and Title | Kerala HC (2018)

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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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TUESDAY, THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940

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OP(C)No. 96 of 2015

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AGAINST THE ORDER IN I.A.No.2119/2014 IN OS No. 7/2011 of MUNSIFF'S COURT, PAYYANNUR, DATED 09-12-2014

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PETITIONER:

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P.V.SASIDHARAN, AGED 58 YEARS, S/O.LATE GOPALAN NAMBIAR, KANNUR TALUK, CHERUTHAZHAM AMSOM DESOM, PILATHARA, KANNUR DISTRICT.

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BY ADV. SRI.M.V.AMARESAN

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RESPONDENT:

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NIRMAN, UNIT OF BUILDING MATERIAL MARKETING SOCIETY, REPRESENTED BY ITS SECRETARY, ERAMAM NORTH, CHOORAL P.O., KANNUR DISTRICT, PIN 670561.

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BY ADVS. SRI.I.V.PRAMOD SRI. K.V. NAZAR SRI. B. VINOD SRI. B.H. MANZOOR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C) No.96 of 2015

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JUDGMENT

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Aggrieved by the order in I.A.No.2119/2014 in O.S.No.7/2011 of the Munsiff's Court, Payyannur, dated 09.12.2014, the petitioner/plaintiff came up with this original petition under Article 227 of the Constitution of India.

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The order in dispute (Exhibit P4) was passed by the learned Munsiff on an application submitted for remitting back the Commissioner's report to the same Commissioner. It was rejected by the learned Munsiff.

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The suit was filed for injunction simplicitor against trespass. The plaintiff is the person who purchased item No.6 in 'G' Schedule of an earlier partition of the property in question.

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An application for appointment of a Commission was submitted at the instance of the plaintiff, who, in turn, visited the property and prepared Exhibit P1 report and Exhibit P1(a) survey plan with the help of a qualified Surveyor. Exhibit P2 objection was preferred against the survey plan as well as the report and an application was also filed for remitting back the report and the plan to the very same Commissioner for preparation of a plan in accordance with the measurement and

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O.P.(C) No.96 of 2015

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description, which was rejected by the learned Munsiff.

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A Division Bench of this Court in Francis Assissi v. Sr. Breesiya [ILR 2017 (1) Kerala 33 = 2017 (1) KLT 1041 = 2017 KHC 15] has laid down the legal position pertaining to Order XXVI CPC. It was held that it is not permissible to remit back the Commissioner's report, mahazar or plan as it would form part of the record of the Court, except for the purpose of a Commission issued for effecting partition. But, at the same time, it is permissible to issue a fresh commission, if there is necessity for issuing another Commission.

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The present suit is one for injunction simplicitor stating that the property of the plaintiff lies within defined boundaries. But the nature of the boundary is not pleaded anywhere in the plaint or interim injunction application. The Commissioner, who visited the property, did not mention anything about the separating boundaries in his report and mahazar. It is true that the survey Commissioner has prepared a plan. But, according to the plaintiff, it is not in accordance with the description of property and measurement. It was also submitted that the property was not located based on the parental document/partition deed. During the course of arguments, the learned counsel for the petitioner/plaintiff submitted that the petitioner is intending to submit an amendment application to incorporate a prayer for locating and fixing the boundary separating his property, for which, measurement of the entire property

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O.P.(C) No.96 of 2015

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comprised in the same survey number in accordance with the description given in the earlier document/parental document - the partition deed - and also in accordance with the survey records is necessary. For that purpose, a fresh Commission is permissible without remitting back the present report, plan and mahazar.

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Reserving the said right of the petitioner/plaintiff, the present petition is hereby dismissed. No costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

O.P.(C) No.96 of 2015

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF COMMISSION REPORT IN O.S.7/2011 FILED BEFORE MUNSIFF COURT, PAYYANNUR, DATED 22.07.2014.
EXHIBIT P1(a)	TRUE COPY OF PLAN FILED ALONG WITH EXHIBIT P1 REPORT.
EXHIBIT P2	TRUE COPY OF AFFIDAVIT FILED BY THE PETITIONER IN SUPPORT OF THE I.A.2119/2014 IN O.S.NO.7/2011 BEFORE MUNSIFF COURT, PAYYANNUR.
EXHIBIT P3	TRUE COPY OF COUNTER FILED BY THE RESPONDENT IN I.A.2119/2014 IN O.S.NO.7/2011 BEFORE MUNSIFF COURT, PAYYANNUR.
EXHIBIT P4	TRUE COPY OF ORDER IN I.A.NO.2119 OF 2014 IN O.S.NO.7/2011 ON THE FILE OF THE COURT OF THE MUNSIFF, PAYYANNUR, DATED 09.12.2014.
RESPONDENTS' EXHIBIT	: NIL

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// TRUE COPY //

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P.A. TO JUDGE

P.v.Sasidharan v. Nirman

Case brief

What is this about?

What did the court decide?

P.v.Sasidharan v. Nirman

Case brief

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