Dismissed

Laila K v. Madhusoodanan Kuruvattil

Kerala HC13 Nov 2023OP(C)/1855/2023

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a petition challenging an order directing measurement of defendants' property in an underlying suit for injunction. The court held that measurement is not barred in injunction suits where pleadings assert title disputes and potential encroachment.

What did the court decide?

The original petition challenging the order for measurement was dismissed, upholding the Munsiff Court's order.

Laila K Vs Madhusoodanan Kuruvattil — Property and Title | Kerala HC (2023)

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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 C. JAYACHANDRAN

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MONDAY, THE 13^TH DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945

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OP(C) NO. 1855 OF 2023

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AGAINST IA.NO.1/2023 IN OS 177/2020 OF MUNSIFF COURT, HOSDRUG

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PETITIONERS/RESPONDENTS/DEFENDANTS:

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1 LAILA K AGED 55 YEARS W/O.M.M.ABDUL AZEEZ, RESIDING NEAR CHAKRAPANI TEMPLE, THAKKANNU, ELAMBACHI P.O., HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671311 2 M.M.ABDUL AZEEZ AGED 59 YEARS S/O MUHAMMED KASSIM, RESIDING NEAR CHAKRAPANI TEMPLE, THAKKANNU, ELAMBACHI P.O., HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671311 BY ADVS. T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. AISWARYA JAYAPAL

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RESPONDENT/PETITIONER/PLAINTIFF:

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MADHUSOODANAN KURUVATTIL AGED 53 YEARS S/O.NARAYANI, RESIDING AT NANDANA HOUSE, NEAR CHAKRAPANI TEMPLE, THAKKANNU, ELAMBACHI P.O., HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671 311 BY ADVS. UNNI. K K(EZHUMATTOOR) V.SUMESH(S-1555)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C).No. 1855 of 2023

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..2..

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J U D G M E N T

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Dated this the 13^th day of November, 2023

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The petitioners herein are the defendants in

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O.S.No.177/2020 pending before the Munsiff's Court, Hosdurg. They are aggrieved by Ext.P10

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order, as per which, an application for measurement of the defendants' property through an advocate commission has been ordered by the learned Munsiff.

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2. Heard the learned counsel for the petitioners and the learned counsel for the respondent.

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3. Learned counsel for the petitioners submitted

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that Ext.P10 order order cannot be sustained, inasmuch as the measurement of the property of the defendant is not required at all in a suit for

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..3..

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O.P.(C).No. 1855 of 2023

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injunction simpliciter. It was argued that the suit was one for the permanent prohibitory injunction restraining the defendant from encroaching into plaint B schedule pathway and no further relief is sought for. There is also no allegation that the defendant has already encroached into plaint B schedule pathway. In such circumstances, the measurement of the property is thoroughly unnecessary is the contention urged by the learned counsel for the respondent. This contention was seriously opposed

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by the learned counsel for the respondent. According to the counsel, Ext.P10 order is fully sustainable as per law.

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4. Having heard the learned counsel appearing on

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both sides, this Court finds little merit in the instant Original Petition. This Court notice that, in the written statement preferred by the defendants, the contention is to the effect that

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O.P.(C).No. 1855 of 2023

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..4..

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the area shown as plaint B schedule pathway is part and parcel of the defendants' property, which they obtained under the respective title deed pleaded in the written statement. According to

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the defendants, the plaintiff has no right whatsoever, over the property described as B schedule. Per contra, the claim of the plaintiff

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is that the area shown as plaint B schedule property is a common pathway set apart by the seller of the plaintiff, who was the owner of a larger extent of property. From the pleadings afore-referred, it is clear that the plaintiff wants to establish that plaint B schedule pathway is not part and parcel of the defendants' property, covered by their title deed. When a specific assertion is made in the written statement to the effect that plaint B schedule

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pathway is part and parcel of the defendants'

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property, this Court cannot find any infirmity or illegality in respect of Ext.P10 order, which

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O.P.(C).No. 1855 of 2023

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..5..

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directs measurement of the defendants' property. There cannot be any hard and fast rule that in a suit for injunction simpliciter, measurement of the disputed properties cannot be effected at all. Decision based on the possession alone is only one of the approach recognized by law. However, if the peculiar pleadings of the parties justifies an application for measurement of the properties being allowed, the same cannot be found fault with, harping under the impression that in a suit for injunction simpliciter, measurement of the properties cannot be done at all. In such circumstances, this Court finds no merit in the challenge against Ext.P10 order.

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This Original Petition fails and the same will stand dismissed.

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Sd/- C. JAYACHANDRAN JUDGE

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O.P.(C).No. 1855 of 2023

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..6..

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APPENDIX OF OP(C) 1855/2023

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PETITIONER EXHI	BITS
Exhibit-P1	THE TRUE COPY OF THE PLAINT IN O.S.NO.177/2020 ON THE FILES OF THE MUNSIFF'S COURT, HOSDURG
Exhibit-P2	THE TRUE COPY OF THE PETITION IN I.A.NO.2/2020 IN O.S.NO.177/2020 ON THE FILES OF THE MUNSIFF'S COURT, HOSDURG
Exhibit-P3	THE TRUE COPY OF THE INJUNCTION ORDER COMMUNICATED TO THE PETITIONERS IN I.A.NO.2/2020 IN O.S.NO.177/2020 ON THE
	FILES OF THE MUNSIFF'S COURT, HOSDURG
Exhibit-P4	THE TRUE COPY OF THE REPORT DATED 29/12/2020 FILED BY THE ADVOCATE COMMISSIONER APPOINTED BY THE MUNSIFF'S COURT, HOSDURG IN I.A.NO.3/2020 IN O.S.NO.177/2020
Exhibit-P5	THE TRUE COPY OF THE WRITTEN STATEMENT DATED 11/1/2021 IN O.S.NO.177/2020 ON THE FILES OF THE MUNSIFF'S COURT; HOSDURG
Exhibit-P6	THE TRUE COPY OF THE ISSUES FRAMED BY THE MUNSIFF'S COURT, HOSDURG IN O.S.NO.177/2020 ON 7/4/2021
Exhibit-P7	THE TRUE COPY OF THE PETITION IN I.A.NO.1/2022 IN O.S.NO.177/2020 ON THE FILES OF THE MUNSIFF'S COURT, HOSDURG
Exhibit-P8	THE TRUE COPY OF THE PETITION IN I.A.NO.1/2023 IN O.S.NO.177/2020 ON THE FILES OF THE MUNSIFF'S COURT, HOSDURG
Exhibit-P9	THE TRUE COPY OF THE COUNTER FILED BY THE PETITIONERS HEREIN IN I.A.NO.1/2023 IN O.S.NO.177/2020 ON THE FILES OF THE MUNSIFF'S COURT, HOSDURG
Exhibit-P10	THE CERTIFIED COPY OF THE ORDER DATED 27/7/2023 IN I.A.NO.1/2023 IN O.S.NO.177/2020 ON THE FILES OF THE MUNSIFF'S COURT; HOSDURG

Laila K v. Madhusoodanan Kuruvattil

Case brief

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Laila K v. Madhusoodanan Kuruvattil

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