Allowed

Sivan Nair, v. Krishnankutty Nair

Kerala HC11 Jul 2019OP(C)/741/2019

Case brief

AI extract

What is this about?

In an original petition, the Hon'ble Court allowed the petitioner's application for appointment of an Advocate Commissioner with a Surveyor to measure property. The court set aside the lower court's order which dismissed the application based on an earlier report, holding it unsustainable due to the dispute over the extent of possession.

What did the court decide?

I.A.No.5121/2018 allowed; the court below directed to appoint an Advocate Commissioner with a Surveyor to measure out the property.

Sivan Nair, Vs Krishnankutty Nair — Property and Title | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

¶4

THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941

¶5

OP(C).No.741 of 2019

¶6

AGAINST THE ORDER/JUDGMENT IN OS 1561/2015 of I ADDITIONAL MUNSIFF COURT, TRIVANDRUM

¶7

PETITIONER:

¶8

SIVAN NAIR, VINOD BHAVAN, NALLOORKONAM, ULIYAZHATHURA VILLAGE,

¶9

BY ADVS. SRI.K.B.PRADEEP SHRI.HARISANKAR R

¶10

RESPONDENTS:

¶11

1 KRISHNANKUTTY NAIR, CHANDANAPURATHU VEEDU, CHEMPAZHANTHI, ULIYAZHATHURA695587.

¶12

2 CHANDRALEKHA W/O.KRISHNANKUTTY NAIR, CHANDANAPURATHU VEEDU, CHEMPAZHANTHI, ULIYAZHATHURA-665587.

¶13

BY ADV. SRI.R.S.KALKURA

¶14

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

OP(C).No.741 of 2019

¶16

¶17

JUDGMENT

¶18

Petitioner is the plaintiff in O.S.No.1561/2015 of Munsiff Court,

¶19

Thiruvananthapuram. He filed I.A.No.5121/2018 for

¶20

appointment of an Advocate Commissioner to measure the property with the help of a Surveyor. By Ext.P7, that application was dismissed mainly on the ground that the Advocate Commissioner who had visited the property earlier had reported on 31.08.2015 that there was a well defined boundary with stones to separate the properties of plaintiff and defendants. Hence, the court held that there was no need to measure out the property to fix the boundary.

¶21

2. Learned counsel for the petitioner invited my attention to the written statement, wherein at page 11, the defendant had a specific case that the description of the plaint schedule property was false and mischievous. It was also contended that a portion of the property of the plaintiff

¶22

OP(C).No.741 of 2019

¶23

¶24

was taken for widening a road. There was yet another contention that the eastern side of the plaintiff's property was the property of the defendant, who had obtained it by virtue of sale deed on 2013. Evidently, there was a dispute regarding the extent in possession of the plaintiff. On the other hand, the plaintiff by Ext.P4 objections to the commission report had averred at paragraph 5 that without identifying the extent of land of the petitioner, the commissioner has mentioned about the boundary.

¶25

3. Having considered the specific objections raised by the plaintiff as against the commission report, I feel that the court below ought not have relied on it, especially when the suit was one for fixation of boundary and the extent was in dispute. Having regard to this, I feel that the impugned order is not legally sustainable and is

¶26

liable to be set aside. Consequently, I.A.No.5121/2018 will stand allowed and the court

¶27

OP(C).No.741 of 2019

¶28

¶29

below shall appoint an Advocate Commissioner with

¶30

a Surveyor to measure out the property.

¶31

O.P. is allowed to that extent.

¶32

Sd/-

¶33

SUNIL THOMAS, JUDGE

¶34

Pn 11/07

¶35

OP(C).No.741 of 2019

¶36

¶37

APPENDIX

¶38

PETITIONER'S/S EXHIBITS:

¶39

EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.1561/2015. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT EXHIBIT P3 TRUE COPY OF A REPORT DATED NIL. EXHIBIT P4 TRUE COPY OF THE OBJECTIONS TO EXT.P3. EXHIBIT P5 TRUE COPY OF THE I.A.NO.5121/2018. EXHIBIT P6 TRUE COPY OF THE OBJECTION EXHIBIT P7 TRUE COPY OF THE ORDER DATED 21/01/2019

Sivan Nair, v. Krishnankutty Nair

Case brief

What is this about?

What did the court decide?

Sivan Nair, v. Krishnankutty Nair

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

Vidyasree Vs Sunil.P.

P. Raveendran Pillai Vs Raman Pillai

Balakrishna Kurup Vs Kerala Financial Corporation

P.C.Shiju, Vs Pradeep Kumar.T.D.

Dr.Remya Immanuel Vs Lijo P.John

State of Kerala Vs Vicar St.Mary'S Church