The High Court observed survey discrepancies regarding a disputed way but allowed the petitioner liberty to seek a second commission to measure property and find encroachment, subsequently disposing of the original petition.
Petitioner is at liberty to send out a second survey commission to measure the property and find encroachment, if any, on the disputed way.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 4TH DAY OF JULY 2023 / 13TH ASHADHA, 1945
OP(C) NO. 1916 OF 2018
AGAINST THE ORDER IN I.A.NO.2277/16 IN OS 222/2011 OF MUNSIFF
COURT,VARKALA
PETITIONER/DEFENDANT:
PRABULLACHANDRAN,
S/O MADHAVAN,MADHAVEEYAM VEEDU,VATTAPLAMOODU
DESOM,CHEMMARUTHY VILLAGE,VARKALA,
THIRUVANANTHAPURAM-695141.
BY ADVS.
SRI.K.MOHANAKANNAN
SRI.SAABIR F. HAQ
RESPONDENTS/PLAINTIFFS:
1 GEETHA, D/O.SAMBASIVAN,PLAVILA HOUSE,VATTAPLAMOODU,CHEMMARUTHY VILLAGE,THIRUVANANTHAPURAM-695141.2 VIJAYALEKSHMI, D/O.MADHAVAN,PLAVILA HOUSE,VATTAPLAMOODU,CHEMMARUTHY VILLAGE,THIRUVANANTHAPURAM-695141.3 SUNILKUMARS/O MADHAVAN,PLAVILA HOUSE,VATTAPLAMOODU,CHEMMARUTHY
VILLAGE,THIRUVANANTHAPURAM-695141.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1916 OF 2018 2
JUDGMENT
At the instance of both parties, earlier a survey
commission was issued for the purpose of locating the
disputed way. One of the parties is claiming right,
title and interest over the registered holding based on
a testament left out. It is submitted by the learned
counsel for the petitioner that the way now located by
the commissioner is not the one which is made mentioned
in the Will.
Yet another contention was also raised by the
learned counsel that there is a finding to the effect
that the defendant had encroached over the way to the
extent of one metre without measuring their property.
Hence, the defendant is at liberty to send out a second
survey commission for the purpose of measuring the
property and to find out encroachment, if any, on the
disputed way. Without prejudice to the said right, the
present original petition will stand disposed of.
Sd/P.SOMARAJAN JUDGE
msp
OP(C) NO. 1916 OF 2018 3
APPENDIX OF OP(C) 1916/2018
PETITIONER EXHIBITS
EXHIBIT P1TRUE COPY OF THE PLAINT IN O.S.222/2011 OF
MUNSIFF COURT,VARKALA
EXHIBIT P2TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE DEFENDANT/PETITIONER HEREIN IN
O.S.222/2011 DATED 18.11.2011
EXHIBIT P3TRUE COPY OF THE DOCUMENT NO.5/1990 OF
SRO,VARKALA DATED 17/1/1990.
EXHIBIT P4TRUE COPY OF THE AFFIDAVIT AND PETITION FILED
IN SUPPORT IA 3249/2014 IN O.S 222/2011
EXHIBIT P5TRUE COPY OF THE AFFIDAVIT AND PETITION IN
SUPPOR OF I.A.NO.1973/2015 IN O.S.222/2011
EXHIBIT P6TRUE COPY OF THE COMMISSION REPORT WITH PLAN
IN OS 222/2011 DATED 30/6/2016
EXHIBIT P7TRUE COPY OF THE ORDER IN I.A.2227/2016 IN
O.S.222/2011 DATED 22.10.2016 OF MUNSIFF
COURT,VARKALA DATED 22/10/16
EXHIBIT P8TRUE COPY OF THE ORDER DATED 20/6/2018 PASSED
BY THE MUNSIFF COURT,VARKALA IN
I.A.NO.2277/2016 IN O.S.222/2011.
PRABULLACHANDRAN
GEETHA
VIJAYALEKSHMI
SUNILKUMAR
P.SOMARAJAN
JUDGE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court