Dismissed

Victor v. Devassy

Kerala HC25 Oct 2019OP(C)/13/2018

Case brief

AI extract

What is this about?

This petition challenged an order dismissing an application for appointing an Advocate Commissioner to identify property boundaries in an injunction suit. The High Court dismissed the petition, upholding the lower court's view that boundary identification was unneeded without a prayer for it or declaration. It did not stop the petitioner from filing a fresh application if amendments were permitted

What did the court decide?

Application for appointing an Advocate Commissioner was dismissed; petitioner alive to file fresh application.

Victor Vs Devassy — Civil Procedure and Limitation | Kerala HC (2019)

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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 B.SUDHEENDRA KUMAR

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FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941

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OP(C).No.13 OF 2018(O)

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AGAINST THE ORDER/JUDGMENT IN OS 803/2015 DATED 04-07-2017 OF MUNSIFF COURT, CHALAKUDY

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PETITIONER/S:

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VICTOR

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S/O. NALPATT @ NALPADAN DAVIS @DEVASSY, AGED 67, KORATTY DESOM, MURINGOOR THEKKUMURY VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT.

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BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA

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RESPONDENT/S:

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1 DEVASSY

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S/O. MAZHUVANCHERY LATE PYLOTH, KORATTY DESOM , MURINGOOR THEKKUMURY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT-680 309

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2 ANIE W/O. MAZHUVANCHERY DEVASSY, KORATTY DESOM , MURINGOOR THEKKUMURY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT-680 309

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R1 BY ADV. SRI.DENNY DEVASSY

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No.13 OF 2018(O)

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-2-

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JUDGMENT

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The petitioner is the plaintiff in

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O.S.No.803/2015 on the files of the court

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below. The petitioner filed

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I.A.No.1240/2017, praying for appointing an

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Advocate Commissioner to inspect the property with the assistance of a Surveyor. The court below as per Ext.P5 order dismissed the said application, against which, this original petition has been filed.

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2. Heard.

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3. The suit is for permanent

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prohibitory injunction, restraining the

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defendents from obstructing the construction

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OP(C).No.13 OF 2018(O)

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-3-

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of a compound wall on the western side of

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the property of the plaintiff. The contention of the petitioner is that the identity of the plaint scheduled property had been disputed by the defendants. Therefore, it is necessary to identify the western boundary of the plaint scheduled property. The defendents would contend that an Advocate Commissioner was appointed earlier and the said Advocate Commissioner had already filed a report stating that there was a compound wall on the western side of the plaint scheduled property. However, the Advocate Commissioner could not state about the ownership of the land

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where the said compound wall was constructed.

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OP(C).No.13 OF 2018(O)

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-4-

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The court below observed that since the suit is only a suit for injunction on the basis of the possession of the plaintiff over the property, the possession of the plaintiff over the property is to be established by the plaintiff. For establishing the possession, it is necessary to identify the property. Without identifying the property, the possession of the plaintiff over the property could not be established. The court below further observed that there was

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no prayer in the plaint for fixation of boundary. There is also no prayer for declaration. In the said circumstances, the court below found that there was no need to

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identify the property with the assistance of

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OP(C).No.13 OF 2018(O)

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-5-

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the surveyor in this case. Having gone through Ext.P5 order, I do not find any reason to interfere with the said finding.

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In the result, this original petition stands dismissed.

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However, this order will not stand in

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the way of the petitioner in filing fresh application, in accordance with law, if the relief sought for is permitted to be amended.

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Sd/-

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B. SUDHEENDRA KUMAR, JUDGE

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STK

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OP(C).No.13 OF 2018(O)

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-6-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO. 803 OF 2015 ON THE FILES OF MUNSIFF'S COURT, CHALAKKUDY.

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EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT IN O.S. NO. 803 OF 2015 ON THE FILES OF MUNSIFF'S COURT, CHALAKKUDY.

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EXHIBIT P3 TRUE COPY OF COMMISSION REPORT AND SKETCH DATED 29.09.2016 IN O.S. NO. 803 OF 2015 ON THE FILES OF MUNSIFF COURT, CHALAKKUDY.

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EXHIBIT P4 TRUE COPY OF APPLICATION IN I.A. NO. 1240 OF 2017 IN O.S. NO. 803 OF 2015 ON THE FILES OF MUNSIFF'S COURT, CHALAKKUDY.

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EXHIBIT P5 TRUE COPY OF ORDER DATED 04.07.2017 IN I.A. NO.1240 OF 2017 IN O.S. NO. 803 OF 2015 PASSED BY MUNSIFF COURT, CHALAKKUDY.

Victor v. Devassy

Case brief

What is this about?

What did the court decide?

Victor v. Devassy

Case brief

What is this about?

What did the court decide?

What the court decided

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