Allowed

Ajayakumar v. Krishnankutty

Kerala HC10 Feb 2021OP(C)/3448/2018

Case brief

AI extract

What is this about?

The High Court allowed the plaintiff's application to have the disputed property measured using the old survey plan in addition to the resurvey plan, finding no prejudice to the respondent and directing expedited trial proceedings.

What did the court decide?

The order (Op.C) No.3448 of 2018 and Interlocutory Application No.866 of 2018 were allowed, permitting measurement based on the old survey plan.

Ajayakumar Vs Krishnankutty — 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 T.V.ANILKUMAR

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WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

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OP(C).No.3448 OF 2018

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AGAINST THE ORDER/JUDGMENT IN OS 112/2010 OF MUNSIFF COURT, ALATHUR

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PETITIONER/PLAINTIFF:

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AJAYAKUMAR,

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S/O KUTTAPPAN, RESIDING AT KALLAYIL, KIZHAKKENCHERY AMSOM DESOM, ALATHUR TALUK.

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BY ADVS. SRI.P.R.VENKATESH SRI.G.KEERTHIVAS

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RESPONDENT/DEFENDANT:

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KRISHNANKUTTY, S/O K.C.KANJUNNI, RESIDING AT KALLAYIL, KIZHAKKENCHERY AMSOM DESOM, ALATHUR TALUK 678 541.

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R1 BY ADV. SRI.BABY MATHEW

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No.3448 OF 2018 2

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JUDGMENT

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The plaintiff in O.S.No.112 of 2010 on the

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file of Munsiff's Court, Alathur sought to remit commission report and plan dated 21.3.2018 submitted before the court. I.A.No.866 of 2018 filed for the said purpose was dismissed by the court below holding that the request for measurement of the property based on old survey plan was beyond the scope of the suit. This finding is seriously challenged in this OP by the aggrieved plaintiff.

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I heard the learned counsel for the

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petitioner/plaintiff as well as the

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respondent/defendant.

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prohibitory injunction. The commission was taken

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out for measurement of the property based on

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OP(C).No.3448 OF 2018 3

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resurvey plan. According to the petitioner unless the properties are permitted to be measured on the basis of old survey plan as well, the matter in dispute arising in the suit between parties cannot be effectively adjudicated. The learned counsel for the respondent submitted that the suit being one for permanent prohibitory injunction, the need for the property being measured out does not arise at all and therefore, itself further request of the plaintiff for measuring the property based on old survey plan is totally uncalled for. The submission made by the learned counsel would have been rightly accepted had this been a case where the issue of commission was objected at the very inception itself. Having the commissioner been allowed to measure out the property and prepare a plan, I am of opinion

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OP(C).No.3448 OF 2018 4

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that now it is too late to contend that the

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property should not be allowed to be measured on the basis of old survey records.

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It is also contended by the learned

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counsel for respondent in support of the impugned order that, there exists no dispute as to identity and further the respondent does not dispute either the possession of petitioner over

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the suit property. On the other hand, the learned counsel for the petitioner submits that on a total reading of the pleadings of the parties, it could be seen that a dispute exists between parties with respect to the northern side of the plaint schedule property.

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Having heard both sides, I am opinion

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that if the commissioner is permitted to measure

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the property on the strength of old survey plan also, that will not in any way prejudice the

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OP(C).No.3448 OF 2018 5

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respondent. If a report not in accordance with the authentic old plan is submitted, it will be open to the defendant to challenge the correctness of the same and pursue all such contentions at the appropriate stage of the suit. I am of opinion that it may not be proper at this stage, to turn down the request of the plaintiff to measure out the suit property with the aid of the old survey plan also in the light of what has been submitted above.

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In the result, this OP and I.A.No.866 of 2018 are allowed. It is made clear that the plan and report already submitted by the advocate commissioner shall remain in tact for the time being. At the same time, it will be open to the petitioner to cause to prepare a separate plan on the basis of old survey records also. It is made clear that the court below will be at

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OP(C).No.3448 OF 2018 6

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liberty to consider the relevancy of the report

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and plan prepared as per old survey plan when the issue arising in the suit is taken up for decision during trial. It is directed that the petitioner shall take all endevour to secure the old survey records for expediting the execution of the commissioner. This being a suit of 2010, there will be a direction to expedite the suit proceeding and finalise it as expeditiously as possible, within a period of six months from the date of receipt of a certified copy of this judgment.

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Sd/-

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T.V.ANILKUMAR, JUDGE

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OP(C).No.3448 OF 2018 7

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE PLAINT IN OS NO.112/2010 FILED BEFORE THE MUNSIFF'S COURT, ALATHUR.
EXHIBIT P2	TRUE COPY OF THE ASSIGNMENT DEED NO.1679/2010 AT THE SRO, VADAKKANCHERY.
EXHIBIT P3	TRUE COPY OF THE REPORT DATED 21.3.2018 SUBMITTED BY THE COMMISSIONER.
EXHIBIT P4	TRUE COPY OF THE OBJECTIONS DATED 5.4.2018 OF THE COMMISSIONER.
EXHIBIT P5	TRUE COPY OF WRITTEN STATEMENT DATED 30.8.2010 SUBMITTED BY THE PETITIONER IN OS NO.112/2010 ON THE FILES OF THE MUNSIFF COURT, ALATHUR.
EXHIBIT P6	TRUE COPY OF IA NO.866/2018 IN OS NO.112/2010 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, ALATHUR.
EXHIBIT P7	TRUE COPY OF COUNTER STATEMENT IA NO.866/2018 IN OS NO.112/2010 FILED BY THE DEFENDANT BEFORE THE MUNSIFF COURT, ALATHUR.
EXHIBIT P8	TRUE COPY OF ORDER DATED 16.11.2018 IN IA NO.866/2018 IN OS NO.112/2010 OF THE MUNSIFF COURT, ALATHUR.

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RESPONDENT'S EXHIBITS: NIL

Ajayakumar v. Krishnankutty

Case brief

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Ajayakumar v. Krishnankutty

Case brief

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