Partly allowed

Jaya Krishnan v. Biju Kumar T

Kerala HC14 Jul 2023OP(C)/562/2023

Case brief

AI extract

What is this about?

Hon'ble High Court of Kerala set aside two orders (Exts. P6 and P10) of the Principal Munsiff Court which erroneously allowed the issuance of survey commissions in suits for injunction simplicitor, holding that such commissions are not permissible without substantial prayers for boundary fixation or possession recovery.

What did the court decide?

Set aside orders Ext.P6 and P10 allowing survey commissions. Affirmed original petitions.

Jaya Krishnan Vs Biju Kumar T — Property and Title | Kerala HC (2023)

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OP(C) Nos.562/2023, 1567/2022

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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 P.SOMARAJAN

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FRIDAY, THE 14TH DAY OF JULY 2023 / 23RD ASHADHA, 1945

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OP(C) NO. 562 OF 2023

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AGAINST THE ORDER DATED 27.01.2023 IN I.A.NO.2/2023 IN OS 4/2023 OF

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PRINCIPAL MUNSIFF COURT, NEYYATTINKARA

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PETITIONERS/DEFENDANTS:

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1JAYA KRISHNAN, AGED 24 YEARS,
S/O GOPALAKRISHNAN NAIR, SUKRITHAM, UCHAKKADA P.O,
KULATHOOR DESOM, KULATHOOR VILLAGE,
NEYYATTINKARA TALUK - 695506
2GOPALAKRISHNAN, AGED 66 YEARS,
S/O NEELAKANTAPILLA, SUKRITHAM, UCHAKKADA P.O,
KULATHOOR DESOM, KULATHOOR VILLAGE,
NEYYATTINKARA TALUK - 695506
BY ADVS.
V.G.ARUN
V.JAYA RAGI
R.HARIKRISHNAN (KAMBISSERIL)
NEERAJ NARAYAN

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RESPONDENTS/PLAINTIFFS:

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1BIJU KUMAR T, AGED 46 YEARS,
S/O THANKAYYAN NADAR, BIJU BHAVAN, ERICHALLOOR DESOM,
KARODE VILLAGE, NEYYATTINKARA TALUK - 695506

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2LIMA MOL, W/O BIJU KUMAR, BIJU BHAVAN, ERICHALLOOR DESOM,
KARODE VILLAGE, NEYYATTINKARA TALUK- 695506

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BY ADVS.
K.B.PRADEEP K.B
JEEVAN KRISHNAKUMAR

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2023, ALONG
WITH OP(C).1567/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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OP(C) Nos.562/2023, 1567/2022

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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 P.SOMARAJAN

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FRIDAY, THE 14TH DAY OF JULY 2023 / 23RD ASHADHA, 1945

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OP(C) NO. 1567 OF 2022

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AGAINST THE ORDER IN OS 510/2021 OF PRINCIPAL MUNSIFF COURT,

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NEYYATTINKARA

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PETITIONER/COUNTER PETITIONER/PLAINTIFF IN THE SUIT:

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JAYAKRISHNAN, AGED 24 YEARS,
S/O GOPALAKRISHNAN NAIR, RESIDING AT SUKRUTHAM, UCHAKADA
P.O., KULATHOOR DESOM, KULATHOOR VILLAGE,
NEYYATTINKARA TALUK THIRUVANANTHAPURAM, PIN – 695506

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BY ADVS.
S.KRISHNA
GOVIND R.

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RESPONDENTS/PETITIONERS/DEFENDANTS IN THE SUIT:

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1THANKAYYAN
S/O ANTONY NADAR, RESIDING AT BIJU BHAVAN,
ERICHALLOOR DESOM KARODE VILLAGE NEYYATTINKARA TALUK
THIRUVANANTHAPURAM, PIN - 695122

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2BIJUKUMAR. T
S/O THANKAYYAN NADAR RESIDING AT BIJU BHAVAN ERICHALLOOR
DESOM KARODE VILLAGE NEYYATTINKARA TALUK
THIRUVANANTHAPURAM, PIN – 695122

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BY ADV K.B.PRADEEP K.B

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2023, ALONG
WITH OP(C).562/2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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OP(C) Nos.562/2023, 1567/2022

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JUDGMENT

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It is against Exts.P6 and P10 orders, the respective
defendants came up under Article 227 of the Constitution.
Ext P6 is the order passed in an early instituted suit
for injunction simplicitor by the plaintiffs (Ext.P1), in
which initially a commission was deputed, who in turn
submitted Ext.P3 report. Thereafter, yet another
commission was sought to be issued under Ext.P4
application, to which Ext.P5 objection was raised on the
ground that since it is a mere suit for injunction
simplicitor, there is no scope for issuance of a survey
commission. But, the trial court did not go into the
merits of the application, but passed a single line
order, Ext.P6, by which it was allowed, ignoring the
legal position earlier settled that there is no occasion
for issuing a survey commission in a mere suit for
injunction simplicitor. Subsequently, yet another suit
was filed wherein Ext.P9 application was submitted for
the very same purpose, during the pendency of stay issued
by this court as against Ext.P6 order, wherein Ext.P10
objection was submitted. Ext.P11 is the order passed. It

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OP(C) Nos.562/2023, 1567/2022

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is also a non-speaking order, by which, a survey
commission was allowed. Both the orders cannot be
sustained, since what is pending is only mere suit for
injunction simplicitor. Unless there is substantial
prayer for fixation of boundary or recovery of possession
or declaration of title as the case may be, there is no
occasion for issuing a commission for measuring out the
property or to locate the property, fixing any boundary
or to show the separating boundary line. Necessarily
Exts.P6 and P10 will stand set aside. It is made clear
that parties are at liberty to amend the respective
plaint, if it is found necessary. Without prejudice to
the said right, both the original petitions will stand
allowed.

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Sd/-

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P.SOMARAJAN JUDGE

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msp

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OP(C) Nos.562/2023, 1567/2022

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APPENDIX OF OP(C) 1567/2022

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`PETITIONER EXHIBITS`
`Exhibit P1`	`A TRUE COPY OF THE PLAINT IN OS 510 OF 2021 ON` `THE FILES OF PRINCIPAL MUNSIFF, NEYYATTINKARA` `DATED 26.07.2021`
`Exhibit P2`	`A TRUE COPY OF THE REPORT FILED BY THE` `COMMISSIONER ALONG WITH THE SKETCH DATED` `29.09.2021`
`Exhibit P3`	`A TRUE COPY OF THE ORDER IN IA NO. 5 OF 2022 IN` `OS 510 OF 2021 ON THE FILES OF PRINCIPAL` `MUNSIFF, NEYYATTINKARA DATED 05.07.2022`
`Exhibit P4`	`A TRUE COPY OF THE COMMISSION APPLICATION FILED` `BY THE 2ND DEFENDANT DATED 18.06.2022`
`Exhibit P5`	`A TRUE COPY OF THE OBJECTION BY THE PLAINTIFF` `TO THE COMMISSION APPLICATION DATED 25.06.2022`
`Exhibit P6`	`A TRUE COPY OF THE WRITTEN STATEMENT FILED BY` `THE 2ND DEFENDANT DATED 02.07.2022`
`Exhibit P7`	`A TRUE COPY OF THE ORDER IN IA NO. 7 OF 2022 IN` `OS 510 OF 2021 ON THE FILES OF PRINCIPAL` `MUNSIFF, NEYYATTINKARA DATED 19.07.2022`
`RESPONDENT EXHIBITS`
`Exhibit R2-A`	`TRUE COPY OF THE PHOTOGRAPH SHOWING THE` `BLOCKAGE OF THE ROAD`
`Exhibit R2-B`	`TRUE COPY THE REGISTRATION CERTIFICATE BEARING` `NO KL -19-8156`

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OP(C) Nos.562/2023, 1567/2022

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`PETITIONER EXHIBITS`	`APPENDIX OF OP(C) 562/2023`
`Exhibit P1`	`THE TRUE COPY OF THE PLAINT IN O.S NO. 4 OF 2023` `ON THE FILES OF PRINCIPLE MUNSIFF COURT,` `NEYYATTINKARA DATED 02.01.2023`
`Exhibit P2`	`THE TRUE COPY OF THE PLAINT IN O.S NO. 510 OF 2021` `ON THE FILES OF PRINCIPLE MUNSIFF COURT,` `NEYYATTINKARA DATED 26-07-2021`
`Exhibit P3`	`TRUE COPY OF THE COMMISSION REPORT AND PLAN IN O.S` `NO. 510 OF 2021 ON THE FILES OF PRINCIPLE MUNSIFF` `COURT, NEYYATTINKARA DATED 29.09.2021`
`Exhibit P4`	`THE TRUE COPY OF I.A 7/2022 IN O.S 510 OF 2021 ON` `THE FILES OF PRINCIPLE MUNSIFF COURT,` `NEYYATTINKARA DATED 18-06-2022`
`Exhibit P5`	`THE TRUE COPY OF THE OBJECTION FILED BY THE` `PLAINTIFF AGAINST I.A NO.7/2022 IN O.S 510 OF 2021` `ON THE FILES OF PRINCIPLE MUNSIFF COURT,` `NEYYATTINKARA DATED 25-06-2022`
`Exhibit P6`	`THE TRUE COPY OF THE ORDER IN I.A NO. 7 OF 2022 IN` `O.S NO. 510 OF 2021 ON THE FILES OF PRINCIPLE` `MUNSIFF COURT, NEYYATTINKARA DATED 19-07-2022`
`Exhibit P7`	`THE TRUE OF THE MEMORANDUM OF ORIGINAL PETITION IN` `OPC NO. 1567 OF 2022 ON THE FILES OF THE HON'BLE` `HIGH COURT OF KERALA DATED 19-08-2022`
`Exhibit P8`	`THE TRUE COPY OF THE INTERIM ORDER IN OPC NO. 1567` `OF 2022 DATED 22.08.2022 PASSED BY THIS HON'BLE` `COURT`
`Exhibit P9`	`THE TRUE COPY OF I.A NO. 2 OF 2023 IN O.S NO. 4 OF` `2023 ON THE FILES OF THE PRINCIPLE MUNSIFF COURT,` `NEYYATTINKARA DATED 02-01-2023`
`Exhibit P10`	`TRUE COPY OF THE OBJECTION FILED BY THE` `DEFENDANTS/COUNTER PETITIONERS IN I.A NO. 2 OF` `2023 IN O.S NO. 4 OF 2023 ON THE FILES OF` `PRINCIPLE MUNSIFF COURT, NEYYATTINKARA DATED` `27.01.2023`
`Exhibit P11`	`THE TRUE COPY OF THE ORDER PASSED BY THE PRINCIPAL` `MUNSIFF COURT, NEYYATTINKARA IN I.A NO. 2 OF 2023` `IN O.S NO. 4 OF 2023 ON THE FILES OF PRINCIPLE` `MUNSIFF COURT, NEYYATTINKARA DATED 27-01-2023`
`Exhibit P12`	`THE TRUE COPY ENDORSEMENT OF THE OFFICE OF THE` `MUNSIFF COURT, NEYYATTINKARA IN THE DOCKET PAGE OF` `EXT.P11 ORDER`
`Exhibit P13`	`THE TRUE COPY OF THE INTERIM REPORT FILED BY` `ADVOCATE COMMISSIONER SEENA C.B BEFORE THE` `PRINCIPAL MUNSIFF COURT, NEYYATTINKARA ON` `27.02.2023 IN O.S NO. 4 OF 2023`

Jaya Krishnan v. Biju Kumar T

Case brief

What is this about?

What did the court decide?

Jaya Krishnan v. Biju Kumar T

Case brief

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What did the court decide?

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