Dismissed

Narendranathan v. Divakaran

Kerala HC12 Mar 2024OP(C)/189/2024

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the original petition which challenged the lower court's order rejecting an application to remit a Commissioner's report. The court held that the report adequately identified the property and the Commission could not resolve substantive claims regarding burial grounds against the evidence.

What did the court decide?

The original petition filed by the petitioner challenging the impugned order dismissing the remission application stands dismissed.

Narendranathan Vs Divakaran — Property and Title | Kerala HC (2024)

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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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TUESDAY, THE 12^TH DAY OF MARCH 2024/22ND PHALGUNA, 1945

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OP(C) NO.189 OF 2024

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AGAINST THE ORDER/JUDGMENT DATED 08.07.2020 IN I.A. NO.2120/2019 O.S.NO.736 OF 2014 OF ADDITIONAL MUNSIFF COURT, KOZHIKODE-I.

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PETITIONER/1st PETITIONER IN I.A.2120 OF 2019/1ST PLAINTIFF IN O.S.NO.736/2014:

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NARENDRANATHAN, AGED 62 YEARS, S/O.PADINJARAYIL KELU, PADINHARAYIL HOUSE, P.O.ELATHUR, ELATHUR AMSOM DESOM, KOZHIKODE, PIN – 673303.

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BY ADVS. B.PREMNATH (E) MANI GOVINDA MARAR SARATH M.S.

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RESPONDENTS/RESPONDENTS IN I.A.2120 OF 2019/DEFENDANTS IN O.S.NO.736/2014:

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1 DIVAKARAN, AGED 49 YEARS, S/O.GOPALAN, IRIKKALI HOUSE, ELATHUR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN – 673303.

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2 BABURAJAN, AGED 50 YEARS, S/O.(LATE) CHATHU, MEDAPARAMBATH HOUSE, PAVANGAD, ELATHUR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN – 673303.

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3 AJITHKUMAR, AGED 36 YEARS, S/O.(LATE) CHATHU, LIFE, NEDUVILAKATH HOUSE, ELATHUR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN – 673303.

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4 ANILKUMAR, AGED 36 YEARS, S/O.(LATE) MADHAVAN, MUNUKANDATHIL HOUSE, CHETTIKULAM, ELATHUR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN – 673303.

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5 ANITHA, AGED 40 YEARS, D/O.(LATE) MADHAVAN, MUNUKANDATHIL HOUSE, PUTHIYA NIRTAH,

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OP(C) No.189 of 2024

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CHETTIKULAM, ELATHUR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN – 673303.

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6 HASEENA BEEVI, AGED 51 YEARS, W/O.RAFEEK AHAMMAD, M.C. HOUSE, GREEN PARK, P.O.BEPPUR, KOZHIKODE DISTRICT, PIN – 673015.

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7 RAFEEQ AHAMMED, AGED 57 YEARS, S/O.M.C.MUHAMMAD, M.C. HOUSE, GREEN PARK, P.O.BEPPUR, KOZHIKODE DISTRICT, PIN – 673015.

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BY ADVS.

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V.V.SURENDRAN P.A.HARISH(K/000392/1991) DONA PAUL(K/001661/2018)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) No.189 of 2024

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JUDGMENT

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Dated, this the 12^th day of March, 2024

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This Original Petition is preferred by the petitioner, who is the 1^st plaintiff in O.S. No.736/2014. The petitioner is aggrieved by Ext.P20 order, which rejected Ext.P17 application to remit Ext.P16 Commission report.

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2. Ext.P1 is the plaint as originally filed, wherein the relief sought for is only for injunction simpliciter, restraining the defendants from cutting and removing the trees from the plaint schedule property, and also, from making any construction therein. The suit was subsequently amended. As per Ext.P2 amended plaint, a declaration is sought for that plaint B1 and B2 schedule properties, which is part of the original B schedule property, is remaining as a burial ground, as envisaged in Document no.2337/1900. The second declaration sought for is

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to the effect that the proceedings in L.A.R

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OP(C) No.189 of 2024

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No.414/1978 and the proceedings in O.S.No.673/2000 of the Principal Munsiff Court, Kozhikode etc., will not bind B1 and B2 schedule properties and the rights of the plaintiffs over the same. B1 and B2 schedule properties were also sought to be recovered by virtue of the third amended prayer. A commission application was filed to identify plaint B schedule property, particularly the properties described as B1 and B2 respectively of the amended plaint. An interim report, Ext.P9, was filed by the Commissioner stating that the property cannot be identified, except with the assistance of the Surveyor. Thereafter, as many as four additional work memos were preferred by the plaintiff vide Exts.P10, P11, P13 and P15, which narrates the manner in which the measurement has to be effected, so as to identify plaint B1 and B2 scheduled properties, especially in the light of certain documents, which are referred to therein. The Commissioner filed a report on 28.03.2019, marked Ext.P16, to which Ext.P17 objection was

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preferred by the plaintiff, pointing out that the property was not measured as required in the work memos and, therefore, seeking to remit the Commissioner's report. The same was dismissed vide the impugned Ext.P20 order.

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3. Heard the learned counsel for the petitioner and the respondents.

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4. Learned counsel for the petitioner would submit that the finding in Ext.P20 to the effect that the plaintiff/petitioner had not specified the document, based upon which, the plaint B schedule property has to be measured and identified is completely wrong, inasmuch as the work memos preferred by the plaintiff/petitioner specifies such documents. According to the learned counsel, without identifying the burial ground as envisaged in the document of the year 1900 in the Commission report, the very purpose of the suit will be defeated. Learned counsel would point out

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that there is no reference in Ext.P16 Commission report, as regards the efforts, if any, taken by the Commissioner, as also, the Surveyor to measure out the properties in the manner specified in the work memos above referred, especially when such work memos were allowed by the trial court.

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5. Per contra, learned counsel for the

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respondents would argue to sustain Ext.P16 Commission report. Learned counsel would point out plaint schedule items B1 and B2 were clearly identified in the plan attached to Ext.P16 report and that the same is shown specifically demarcated therein. The question as to whether a burial ground is there in the properties comprised in B1 and B2 schedule is not something, which can be answered by the Commissioner. According to the learned counsel, the Commissioner can only identify the property and shall also report the present lie and nature. The question as to whether there ought to have been a burial ground in terms

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of the document of the year 1900, is not something, which is within the domain of the Commissioner to answer.

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6. 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 endorses the submission made by the learned counsel for the respondents that plaint schedule items B1 and B2 were identified in the plan attached to Ext.P16 report. The existence or otherwise of a burial ground therein is not a matter, which can be reported by the Commissioner, unless the properties visibily exhibits the existence of such a burial ground at the time of inspection.

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7. Coming to the work memos vide Exts.P10, 11, 13 and 15, this Court is of the opinion that the petitioner/plaintiff had no right in law to insist that the properties shall be measured in a particular manner, as suggested in the work memos.

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OP(C) No.189 of 2024

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This Court is of the opinion that allowing successive work memos filed by the plaintiff, without due application of mind, itself, was not quite proper. The fact that as many as four successive work memos were filed itself would reveal the difficulty in identifying the property with a burial ground in tune with the requirements of the amended plaint, so as to ultimately grant

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the relief for declarations and recovery of possession. This Court notice that several proceedings of the year 1978 in land acquisition, as also, in a suit etc., are sought to be set at naught, as not binding upon the plaintiff and the plaint B1 and B2 scheduled properties. It is pertinent to note that though the plaintiff would rest his claim on the basis of a narration as contained in document no.2337/1900, and that the said document is produced in the trial court, there is no prayer, whatsoever, in the commission application, or for that matter in the work memos, to measure the property in accordance with the

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OP(C) No.189 of 2024

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description contained in the said document. Instead, the work memos wanted measurement of the properties based on subsequent documents, one of which, vide Ext.P18, is of the year 2002.

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8. Having regard to the entire facts and circumstances of this case, this Court finds no infirmity with respect to Ext.P20 order, which dismissed Ext.P17 application to remit the Commissioner's report. As rightly found by the learned Munsiff, a party cannot insist for a Commission report, which answers their

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requirements and wishes in the plaint.

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This Original Petition fails and the same will stand dismissed.

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C.JAYACHANDRAN, JUDGE

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OP(C) No.189 of 2024

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APPENDIX OF OP(C) 189/2024

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE UN-AMENDED PLAINT IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 29.08.2014. EXHIBIT P2 TRUE COPY OF THE AMENDED PLAINT IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 29.08.2014. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT TO THE UN-AMENDED PLAINT IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 23.06.2015.

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EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 2 TO 5 TO THE UN-AMENDED PLAINT IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 19.11.2014.

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EXHIBIT P5 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY RESPONDENTS 1 TO 5 TO THE AMENDED PLAINT IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 09.01.2020.

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EXHIBIT P6 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY RESPONDENTS 6 AND 7 TO THE AMENDED PLAINT IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 13.12.2019.

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EXHIBIT P7 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY RESPONDENTS 1 TO 5 TO THE AMENDED PLAINT IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED MARCH 2021.

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EXHIBIT P8 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY RESPONDENTS 6 AND 7 TO THE AMENDED PLAINT IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 21.03.2021. EXHIBIT P9 TRUE COPY OF THE INTERIM REPORT FILED BY THE ADVOCATE COMMISSIONER IN O.S.NO. 736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 17.09.2014. EXHIBIT P10 TRUE COPY OF THE WORK MEMO SUBMITTED BEFORE THE ADVOCATE COMMISSIONER BY THE PETITIONER AND THE 2ND PLAINTIFF, IN O.S. NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 13.02.2015. EXHIBIT P11 TRUE COPY OF THE WORK MEMO SUBMITTED BY THE PETITIONER AND THE 2ND PLAINTIFF BEFORE THE ADVOCATE COMMISSIONER IN O.S. NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 08.04.2016. EXHIBIT P12 TRUE COPY OF I.A.NO.3144/2016 IN O.S.NO. 736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 04.08.2016.

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EXHIBIT P13 TRUE COPY OF THE ADDITIONAL WORK MEMO OF THE PETITIONER AND THE 2ND PLAINTIFF BEFORE THE ADVOCATE COMMISSIONER IN O.S. NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 21.12.2016.

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EXHIBIT P14 TRUE COPY OF I.A.NO.460/2017 IN O.S.NO. 736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 25.01.2017. EXHIBIT P15 TRUE COPY OF THE WORK MEMO SUBMITTED BY THE PETITIONER AND THE 2ND PLAINTIFF BEFORE THE ADVOCATE COMMISSIONER APPOINTED IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 12.01.2019.

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EXHIBIT P16 TRUE COPY OF THE COMMISSION REPORT ALONG WITH HIS STATEMENT, STATEMENT OF VILLAGE OFFICER, ELATHOOR, THE SKETCH OF THE SURVEYOR, SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 28.03.2019.

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EXHIBIT P17 TRUE COPY OF I.A.NO.2120/2019 IN O.S.NO. 736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 14.06.2019. EXHIBIT P18 TRUE COPY OF THE DOCUMENT NO.1766/2002 OF KOZHIKODE S.R.O., DATED 14.06.2002 EXECUTED BY KALLARAKETTIL SATHYAN AND SAMALA. EXHIBIT P19 TRUE COPY OF THE I.A.NO.2928/2019 IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 07.08.2019.

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EXHIBIT P20 TRUE COPY OF THE ORDER IN I.A.NO. 2120/2019 IN O.S.NO.736/2014 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE, DATED 08.07.2020.

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EXHIBIT P21 TRUE COPY OF THE MEMORANDUM IN C.M.A.NO. 53/2020 BEFORE THE HONOURABLE DISTRICT COURT-IV, KOZHIKODE, DATED 11.09.2020. EXHIBIT P22 TRUE COPY OF I.A.NO.2/2021 IN C.M.A.NO. 53/2020 BEFORE THE HONOURABLE DISTRICT COURT-IV, KOZHIKODE, DATED 03.11.2021.

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EXHIBIT P23 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST RESPONDENT IN I.A.NO.2/2021 IN C.M.A.NO.53/2020 BEFORE THE HONOURABLE DISTRICT COURT-IV, KOZHIKODE, DATED 18.03.2022.

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EXHIBIT P24 TRUE COPY OF THE ORDER DATED 30.11.2023 IN CMA.NO.53 OF 2020 BEFORE THE HONOURABLE DISTRICT COURT-IV, KOZHIKODE.

Narendranathan v. Divakaran

Case brief

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Narendranathan v. Divakaran

Case brief

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