Disposed

K.K.Dinesh @ Unni v. Sunil

Kerala HC4 Aug 2021OP(C)/317/2021

Case brief

AI extract

What is this about?

Petitioner challenged an order dismissing an application to restore a demolished compound wall, arguing the trial court prejudged title without evidence. Single-bench this Court acquitted the impugned order. Directed the trial court to reconsider the application afresh, free from previous observations on title.

What did the court decide?

Impugned order dismissing the application for restoration of the demolished compound wall set aside. Trial court directed to reconsider the application afresh.

K.K.Dinesh @ Unni Vs Sunil — Property and Title | Kerala HC (2021)

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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 V.G.ARUN

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WEDNESDAY, THE 4^TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943

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OP(C) NO. 317 OF 2021

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OS 286/2019 OF ADDITIONAL MUNSIFF COURT, CHERTHALA,

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ALAPPUZHA

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PETITIONER/S:

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K.K.DINESH @ UNNI AGED 59 YEARS S/O LATE K.K.KRISHNA PILLAI,ASHA NIVAS, AROOR MURI,AROOR VILLAGE,CHERTHALA TALUK. BY ADVS. S.SUDHISH KUMAR SRI.PAUL ANTONY MANIAMKOT

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RESPONDENT/S:

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SUNIL S/O CHELLAPPAN,KOOTTALIL,AROOR MURI, AROOR VILLAGE,CHERTHALA TALUK,PIN-688534. BY ADVS. SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SRI.M.M.VINOD SMT.M.SUSEELA SMT. KEERTHI B. CHANDRAN SHRI.VIJAYAN PILLAI P.K. SRI.C.PURUSHOTHAMAN NAIR

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C) No.317 of 2021

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JUDGMENT

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Dated this the 04^th day of August , 2021

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The petitioner is the plaintiff in O.S.No.286

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of 2019 on the files of the Additional Munsiff's Court, Cherthala. The first prayer in the suit is for a permanent prohibitory injunction restraining

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the defendant from trespassing into plaint item No.1 property, from demolishing the compound wall on the boundary of the property and from interfering with the peaceful possession and enjoyment of his property by the petitioner. The second prayer is for a mandatory injunction directing the defendant to demolish the new

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foundation constructed adjacent to the compound wall and to restore it to the original position. In the injunction application filed along with the

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plaint, the court passed Ext.P2 order of status quo on 20.06.2019. According to the petitioner, during subsistence of the interim order the defendant and henchmen demolished the compound

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O.P.(C) No.317 of 2021

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wall on the southern side of the petitioner's property and laid floor tiles over the foundation of the wall. Thereupon, the petitioner filed I.A.No.2 of 2020 praying for restoration of demolished compound wall to its original position.

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Aggrieved by the delay in disposing the interlocutory application, the petitioner approached this Court and by judgment dated 11.12.2020 in OP(C) No.988 of 2020, the Additional Munsiff's Court, Cherthala was directed to dispose the I.A within 15 days. Thereafter the court below

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dismissed the I.A vide Ext.P12 order dated 13.01.2021.

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2. The petitioner has raised various grounds of challenge against the factual findings in the impugned order. The respondent has filed counter affidavit refuting the averments and contending that the order needs no interference.

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3. Learned Counsel for the petitioner submitted that the main grievance is against the

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O.P.(C) No.317 of 2021

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finding in Ext.P12 that the boundary wall and the property having width of 60 links on its immediate north does not belong to the petitioner. It is contended that the said finding, rendered without

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taking oral evidence, has the effect of nonsuiting the petitioner. According to the learned Counsel, the finding was unwarranted, more so, since the interlocutory application was filed by

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the petitioner seeking restoration of the demolished compound wall.

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4. Learned Counsel for the respondent submitted that the said finding has been rendered based on the available evidence and it is for the petitioner to establish his right over the compound wall, if any, by adducing evidence in the suit.

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5. I find merit in the contention that the trial court should not have expressed opinion on

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the petitioner's title over the disputed boundary

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wall without adducing evidence. As rightly

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O.P.(C) No.317 of 2021

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contended, the finding on title will prejudice the plaintiff in the conduct of his suit. Learned Counsel for the petitioner submitted that the court below may be directed to consider I.A.No.2

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of 2020 afresh, untrammelled by the earlier

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observations.

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6. I consider the request to be reasonable. Accordingly, the Original Petition is disposed of setting aside Ext.P12 order and directing the court below to reconsider I.A.No.2 of 2020 as expeditiously as possible. If, after hearing the Counsel on both sides, the court below feels that the application can be decided only on the basis of evidence, the interlocutory application can be

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posted along with the suit.

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Scl/04.08.2021

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O.P.(C) No.317 of 2021

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APPENDIX OF OP(C) 317/2021

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PETITIONER ANNEXURE

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EXHIBIT P1	TRUE COPY OF O.S.NO.286/2019 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT,CHERTHALA.
EXHIBIT P2	TRUE COPY OF THE ORDER DATED 20.6.2019 IN I.A.NO.1974/2019 IN O.S.NO.286/2019 PASSED BY THE ADDL.MUNSIFF'S COURT,CHERTHALA.
EXHIBIT P3	TRUE COPY OF THE COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A.NO.1975/2019 IN O.S.NO.286/2019 BEFORE THE HON'BLE MUNSIFF'S COURT,CHERTHALA.
EXHIBIT P4	TRUE COPY OF THE SECOND COMMISSION REPORT DATED 11-12-2019 SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A.NO.3987/2019 IN O.S.NO.286/2019 BEFORE THE HON'BLE MUNSIFF'S COURT,CHERTHALA.
EXHIBIT P5	TRUE COPY OF THE I.A.NO.2/2020 IN O.S.NO.286/2019 FILED BY THE PETITIONER BEFORE THE HON'BLE ADDL.MUNSIFF'S COURT,CHERTHALA.
EXHIBIT P6	TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.2/2020 IN O.S.NO.286/2019 BEFORE THE HON'BLE ADDL.MUNSIFF'S COURT,CHERTHALA.
EXHIBIT P7	TRUE COPY OF THE JUDGMENT DATED 11.12.2020 PASSED BY THIS HONOURABLE COURT IN O.P(C)NO.988/2020.
EXHIBIT P8	TRUE COPY OF THE REPLY ISSUED BY THE SECRETARY,AROOR GRAMA PANCHAYAT UNDER THE RTI ACT TO THE PETITIONER DATED 10.2.2020 PRODUCED BY THE PETITIONER BEFORE THE COURT BELOW AS EXHIBIT-A3.
EXHIBIT P9	TRUE COPY OF THE REPLY ISSUED BY THE SECRETARY,AROOR GRAMA PANCHAYAT UNDER THE RTI ACT TO THE PETITIONER DATED 10.2.2020 PRODUCED BY THE PETITIONER
	BEFORE THE COURT BELOW AS EXHIBIT A4.
EXHIBIT P10	TRUE COPY OF THE PHOTOGRAPH OF THE

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O.P.(C) No.317 of 2021

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	COMPOUND WALL TAKEN AT THE TIME OF
	FILING OF THE SUIT PRODUCED BY THE PETITIONER BEFORE THE COURT BELOW AS EXHIBIT-A5.
EXHIBIT P11	TRUE COPY OF THE PHOTOGRAPH TAKEN AFTER THE DEMOLITION OF THE COMPOUND WALL PRODUCED BY THE PETITIONER BEFORE THE COURT BELOW AS EXHIBIT -A6.
EXHIBIT P12	TRUE COPY OF THE ORDER DATED 13.1.2021 PASSED BY THE COURT BELOW IN I.A.NO.2/2020 IN O.S.NO.286/2019.
EXHIBIT RA	TRUE COPY OF THE PARTITION DEED NO- 13/2001 DATED 1.1.2001 OF THE S.R.O.KUNTHIATHODE
EXHIBIT R B	TRUE COPY OF THE LAND RELINQUISHMENT DATED 26.5.2019 ISSUED BY THE SAID K.K.RAMESH IN FOVOUR OF VILLAGE PANCHAYAT,AROOR.
EXHIBIT R C	TRUE COPY OF LAND RELINQUISHMENT DATED 26.5.2019 ISSUED BY JOHN M.L.SEBASTINE JOSY, KISHORE KUMAR K.T. AND K.A. SURENDRAN IN FAVOUR VILLAGE PANCHAYAT, AROOR
EXHIBIT R D	TRUE COPY OF THE LETTER NO C1-5773/2019 DATED 14.8.2019 ISSUED BY THE SECRETARY, AROOR VILLAGE PANCHAYAT TO THE ASSISTANT ENGINEER, KSEB,
	ELECTRICAL SECTION, AROOR
EXHIBIT R E	TRUE COPY OF THE ESTIMATE NO DB/AROOR PANCHAYAT/AE/ARR/2019-20/ DATED 30.8.2019 ISSUED BY THE ASSISTANT ENGINEER, KSEB, ELECTRICAL SECTION, AROOR TO THE SECRETARY AROOR VILLAGE PANCHAYAT
EXHIBIT R F	TRUE COPY OF THE PHOTOGRAPH OF THE KOOTTALIL NANDAPAATHA
EXHIBIT R G	TRUE COPY OF THE NOTICE NO-C2-1485/20 DATED 7.3.2020 ISSUED BY THE SECRETARY AROOR PANCHAYAT
EXHIBIT R G	TRUE COPY OF THE NOTICE NO-C2-1485/20 DATED 7.3.2020 ISSUED BY THE SECRETARY AROOR PANCHAYAT
EXHIBIT	TRUE COPY OF THE JUDGMENT DATED

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O.P.(C) No.317 of 2021

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18.3.2020 IN WPC NO-8455/2020 OF THIS HONOURABLE COURT.

K.K.Dinesh @ Unni v. Sunil

Case brief

What is this about?

What did the court decide?

K.K.Dinesh @ Unni v. Sunil

Case brief

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What did the court decide?

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