Remanded

V.K. Varghese v. Annama Thomas @ Lisssy

Kerala HC8 Jan 2021OP(C)/618/2018

Case brief

AI extract

What is this about?

Petitioner challenged the Trial Court's dismissal of his application to set aside an Advocate Commissioner's report finding encroachment on public land. The High Court declined to quash the order but directed the Trial Court to reconsider the survey validity during the main suit's proceeding.

What did the court decide?

Directing the trial court to complete the suit and reconsider the objections to the Commissioner's report and plan with specific opportunity for parties to substantiate their contentions.

V.K. Varghese Vs Annama Thomas @ Lisssy — Partition | 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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FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

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OP(C).No.618 OF 2018(O)

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AGAINST THE ORDER DATED 19-01-2018 IN I.A.NO.81/2017 IN O.S. NO.169/2010 OF MUNSIFF COURT, RANNI

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PETITIONER:

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V.K. VARGHESE, KALLURUMPIL, EDATHARA, KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA, RANNY, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SAMUEL ABRAHAM, KALLURUMPIL, EDATHARA, KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA, RANNY.

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BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX

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RESPONDENTS:

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1 ANNAMA THOMAS @ LISSY, W/O. P. T. CHACKO @ SOMAN, NIRAYANNOOR HOUSE, KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNY TALUK-689645

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2 AJIKUMAR, S/O. (LATE) SATHYAPALAN, KDAMANKUNNU PADINJARETHIL, KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNY TALUK-689645

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3 ANILKUMAR, S/O. (LATE) SATHYAPALAN,

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O.P.(C)No.618/2018

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KDAMANKUNNU PADINJARETHIL, KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNY TALUK-689645

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4 ANUKUMAR, S/O. (LATE) SATHYAPALAN, KDAMANKUNNU PADINJARETHIL, KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNY TALUK-689645

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5 AJEESHKUMAR, S/O. (LATE) SATHYAPALAN, KDAMANKUNNU PADINJARETHIL, KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNY TALUK-689645

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6 SNDP VADASSERIKKARA SAKHA NO. 2251, REPRESENTED BY ITS SECRETARY, NEAR M.S HIGHER SECONDARY SCHOOL, RANNI VILLAGE AND TALUK-689645

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7 THE SECRETARY, SNDP VADASSERIKKARA SAKHA NO. 2251,NEAR M.S HIGHER SECONDARY SCHOOL, RANNI VILLAGE AND TALUK-689645

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8 SOSAMMA, W/O. (LATE) UNNI, PUTHENPARAMPIL HOUSE (ALSO KNOWN AS VALLAPURACKAL HOUSE), KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNY TALUK-689645

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9 THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA-689645

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10 THE VADASSERIKKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OFFICE OF VADASSERIKKARA GRAMA PANCHAYAT, VADASSERIKKARA, RANNY-689645

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11 CHACKO THOMAS, NIRAYANNOOR HOUSE, KUMARAMPEROOR, THEKKEKARA

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O.P.(C)No.618/2018

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MURI, VADASSERIKKARA VILLAGE, RANNY TALUK-689645

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12 ANNA MERIN CHACKO, NIRAYANNOOR HOUSE, KUMARAMPEROOR, THEKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNY TALUK-689645

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R10 BY ADVS. SRI.PHILIP J.VETTICKATTU SRI.VINEETH KURIAKOSE R9 BY SRI. JOHNSON M.I. (SR.G.P.)

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2021, THE COURT ON 08-01-2021 DELIVERED THE FOLLOWING:

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O.P.(C)No.618/2018

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Dated this the 8^th day of January,2021

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J U D G M E N T

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Plaintiff in O.S.No.169/2010 before Munsiff Court, Ranni, challenges impugned order dated 19.01.2018 passed by that court dismissing I.A.No.81/2017 filed for setting aside the commission report and plan, invoking Article 227 of the Constitution of India.

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I heard the learned counsel for the petitioner, learned Government Pleader appearing for respondent No.9 and learned standing counsel for respondent No.10, Panchayat. Respondent Nos.1 to 8, 11 and 12 are not represented.

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Dispute in the suit relates to plaint schedule item No.6 public way, which is a puramboke land vested in respondent No.10 and managed by respondent No.9. Petitioner occupies item No.1 to the immediate south of item No.6. The main contestants who are defendant Nos.1 and 2 occupy item No.2 which is their land on the immediate north of item No.6.

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The allegation made by petitioner/ plaintiff against defendant Nos.1 and 2 is that they encroached into item No.6 reducing a portion

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O.P.(C)No.618/2018

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thereof into their wrongful possession. The encroached portion in item No.6 is shown in the plaint as item No.7. The petitioner, in the above circumstances filed the suit for a decree directing defendant Nos.1 and 2 to remove the encroachment and surrender possession thereof to defendant Nos.11 and 12.

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Defendant Nos.1 and 2 in their written statement contested that no part of item No.6 was encroached or possessed by them. It is contended that the encroachment was, in fact, at the instance of petitioner and the encroached portion lies immediately to the north of item No.1.

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The court below deputed an Advocate Commissioner to locate and identify the encroached portion and prepare a plan with the aid of Taluk Surveyor. The report and plan were submitted before the court below indicating that a portion of item No.6 identified in letters Y1..X1..G2..V1 was encroached upon by the petitioner.

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Being aggrieved by the report and plan, petitioner filed I.A.No.81/2017 seeking to set aside the report and plan and remit the same to Commissioner for fresh investigation.

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O.P.(C)No.618/2018

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The court below before passing the impugned order and as part of the enquiry, examined the Taluk Surveyor, the Advocate Commissioner and a Photographer respectively as PWs.1 to 3 and considered a few documents produced before it. After hearing the parties and examining the evidence on record, the court below did not find any ground to set aside the report and plan and it took the view that the encroached area as delineated in Ext.C1(b) plan was precisely located with the aid of survey plan.

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One among the contentions urged by the learned counsel for the petitioner is that the alleged encroached area was not properly located inasmuch as the surveyor failed to ensure that the position of survey stone from which the measurements were taken was unmistakable. If this argument is correct, in my opinion, Ext.C1(b) plan cannot sustain and consequently, the portion identified as encroached portion cannot be said to be precisely located.

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It is also contended by the learned counsel for the petitioner that area identified in letters Y1..X1..G2..VI was not located with the

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O.P.(C)No.618/2018

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aid of title deeds and there is lot of confusion as to direction of lands, as may be evident from the mahazar prepared by the Advocate Commissioner.

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Another submission made by the petitioner's counsel is that measurements taken were not precise and further those recorded were, did not tally with the area of alleged encroachment. A few other objections were also taken.

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I find from the impugned order that objections raised were considered by the court below. This being a proceeding under Article 227 of the Constitution of India, this Court is not supposed to re-appreciate facts and evidence, except to examine whether any patent or manifest illegality has been committed by the court below in passing the impugned order.

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On hearing the learned counsel for the petitioner and the learned Government Pleader, I do not find for the present that the impugned order discloses any patent or manifest illegality. That, however, does not mean that the finding of the court below that the encroached area was correctly located and Ext.C1(b) plan is correct,

O.P.(C)No.618/2018

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is conclusive.

The learned counsel for the petitioner drew my attention to the evidence given by PWs1 and 2 as to the starting point from where the survey measurements began and contended that their versions are mutually contradictory. According to the learned counsel for the petitioner, unmistakable point before starting survey measurements was not fixed by the surveyor. This is essentially a vital aspect which requires to be meticulously examined on evidence. So also, some confusion which exists with respect to the directions of land and difference in measurements also require to be reconsidered, it is contended.

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Though no patent illegality could be discerned from the impugned order at this stage and there is no need at present to call for a fresh report and plan, I am of the opinion that decision taken by the court below as to correctness of plan ought to be left open to be reconsidered at the later stage of the suit, in the light of the fact that the court will be in a better position to understand the contentions of parties and appreciate the evidence brought on

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O.P.(C)No.618/2018

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record in the course of trial of the suit.

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In the result, original petition is disposed of directing the trial court to complete trial of the suit and proceed to decide issues involved therein after giving opportunities to the plaintiff to substantiate his objections to the plan and report. The defendants in the suit shall also be given sufficient opportunity to substantiate their contentions. It is made clear that the impugned order shall not stand in the way of the court below reconsidering the objections raised by the petitioner/plaintiff to the report and plan and taking fresh decision in the matter, in accordance with facts, evidence and law. This being the suit of 2010, efforts shall be taken to see that it is disposed of within a period of six months from the date of receipt of a certified copy of this judgment.

Sd/-

T.V.ANILKUMAR,JUDGE

DST

//True copy/

P.A.To Judge

O.P.(C)No.618/2018

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY OF PETITIONER IN FAVOUR OF SAMUEL ABRAHAM THAT IS ALREADY ON RECORD BEFORE THE MUNSIFF'S COURT, RANNY.

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EXHIBIT P2 TRUE COPY OF THE PLAINT IN OS 169 OF 2010 BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 1 AND 2 IN OS 169 OF 2010 BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P4 TRUE COPY OF THE PLAINT IN OS 36 OF 2009 BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT FILED IN OS 36 OF 2009 BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P6 TRUE COPY OF THE IA 1012 OF 2015 IN OS 169 OF 2010 BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P7 TRUE COPY OF THE WORK MEMO FILED BY RESPONDENTS 1 AND 2 BEFORE THE ADVOCATE COMMISSIONER. EXHIBIT P8 TRUE COPY OF THE REPORT, MAHAZAR AND THE PLAN FILED BY THE ADVOCATE COMMISSIONER IN IA 1012 OF 2015 IN OS 169 OF 2010 BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P9 TRUE COPY OF THE IA 81 OF 2017 IN OS 169 OF 2010 BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P10 TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 AND 2 TO EXHIBIT P9. EXHIBIT P11 TRUE COPY OF THE PHOTOGRAPHS PRODUCED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P12 TRUE COPY OF THE DEPOSITION OF PW1

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O.P.(C)No.618/2018

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(SURVEYOR) IN IA 81 OF 2017 IN OS 169 OF 2010 BEFORE THE MUNSIFF'S COURT, RANNY.

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EXHIBIT P13 TRUE COPY OF THE DEPOSITION OF PW2 (ADVOCATE COMMISSIONER) IN IA 81 OF 2017 IN OS 169 OF 2010 BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P14 TRUE COPY OF THE DEPOSITION OF PW3 (PHOTOGRAPHER) IN IA 81 OF 2017 IN OS 169 OF 2010 BEFORE THE MUNSIFF'S COURT, RANNY. EXHIBIT P15 TRUE COPY OF THE ORDER DATED 19.01.2018 IN IA 81 OF 2017 IN OS 169 OF 2010 BEFORE THE MUNSIFF'S COURT, RANNY.

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RESPONDENTS' EXHIBITS: NIL

V.K. Varghese v. Annama Thomas @ Lisssy

Case brief

What is this about?

What did the court decide?

V.K. Varghese v. Annama Thomas @ Lisssy

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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