Allowed

Roy Varghese v. Boban

Kerala HC26 Feb 2024OP(C)/2083/2023

Case brief

AI extract

What is this about?

An original petition seeking to set aside an order rejecting an application for survey and measurement of disputed property in a pending injunction suit. The high court allowed the survey of the specific property strip to the extent necessary for demarcation and directed the lower court to dispose of the suit within six months.

What did the court decide?

Ext.P5 order set aside; Ext.P3 application allowed to measure and demarcate plaint B schedule property by Advocate Commissioner.

Roy Varghese Vs Boban — 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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MONDAY, THE 26^TH DAY OF FEBRUARY 2024/7TH PHALGUNA, 1945

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OP(C) NO.2083 OF 2023

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AGAINST THE ORDER DATED 15.07.2023 IN I.A.1/2021 IN OS 5/2018 OF MUNSIFF COURT, KOCHI

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PETITIONERS/PETITIONERS/PLAINTIFFS:

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1 ROY VARGHESE, AGED 58 YEARS, S/O.REV.K.M.VARGHESE, KOLINCHICKAL HOUSE, HOUSE NO.18/1081 A, ESI ROAD, PALLURUTHY, KOCHI, PIN – 682006.

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2 SHEEBA ROY VARGHESE, AGED 55 YEARS, W/O.ROY VARGHESE, KOLINCHICKAL HOUSE, HOUSE NO.18/1081 A, ESI ROAD, PALLURUTHY, KOCHI, PIN – 682006.

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BY ADVS. G.KRISHNAKUMAR B.S.SURAJ KRISHNA AGNET JARARD VINAY JOHN.A.J AADITHYAN S.MANNALI SANTHI K.PAI(K/86/1998) HENDRY FERNANDEZ(K/993/1992) S.SREENI(K/778/2007) V.N.SHASHIKALA(S-373)

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 BOBAN, AGED 52 YEARS, S/O.SEBASTIAN, KUTHUKATTU HOUSE, ESI ROAD, PALLURUTHY, KOCHI, PIN – 682006.

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2 SHEENA JOHN, AGED 43 YEARS, W/O.JOHN FRANCIS, KUNDUKULAM HOUSE, H.NO.18/1081, ESI ROAD, PALLURUTHY, KOCHI, PIN – 682006.

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3 PREETHI K.H, AGED 50 YEARS, W/O.JOSY, PRESENTLY ELECTED AS DIVISION COUNCILOR OF DIVISION NO.12, KONNOTH HOUSE, SN JUNCTION, PALLURUTHY, KOCHI, PIN – 682006.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) No.2083 of 2023

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JUDGMENT

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Dated, this the 26^th February, 2024

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The petitioners are the plaintiffs in the suit, O.S.No.5/2018 pending before the Munsiff Court, Kochi. The petitioners are aggrieved by Ext.P5 order, which rejected Ext.P3 application for issuance of a Survey Commission to measure and demarcate plaint A and B schedule properties.

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

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3. This Court notice that the suit is one for permanent prohibitory injunction restraining the defendants from trespassing into plaint B schedule property, and also, doing anything interfering with the plaintiffs peaceful possession and beneficial use of the said property. The plaintiffs also seek a decree for mandatory injunction directing the 2^nd defendant to demolish

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OP(C) No.2083 of 2023

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and remove a concrete ramp constructed allegedly by encroaching into plaint B schedule property.

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4. The plaintiffs' case is that they purchased plaint A schedule property as per a document of the year 1983 and that plaint B schedule strips of land were not included in the said sale, for the reason that the sale was required for widening the road by the Corporation of Kochi. The project for widening the road was subsequently abandoned, whereafter, the plaintiffs/petitioners were in exclusive possession and enjoyment of plaint B schedule property, which they were using also for access to plaint A schedule property. On the allegation that the defendants have constructed a ramp encroaching into plaint B schedule property, the suit was filed.

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5. Ext.P3 application for measurement of the property has been filed to measure out and demarcate plaint A & B schedule properties. This

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OP(C) No.2083 of 2023

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Court is of the definite opinion that measurement of plaint A schedule property is not warranted at all, inasmuch as the relief sought for is only for permanent prohibitory injunction, as also, mandatory injunction. However, in case the plaintiff is found to be eligible for the relief sought for, identification of plaint B schedule property is necessary, especially having regard to the nature of the second relief sought for. In such circumstances, plaint B schedule property has to be measured and demarcated. The ex-parte Commissioner's report may not serve that purpose. To that limited extent, Ext.P3 application has to be allowed.

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6. In the circumstances, Ext.P5 order is set aside and Ext.P3 application is allowed to the limited extent of measuring and demarcating plaint B schedule property by the Advocate Commissioner, aided by a Surveyor.

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OP(C) No.2083 of 2023

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7. On the apprehension of the respondent that the petitioners/plaintiffs are delaying the suit on one premise or other, this Court directs that the suit, O.S.No.5/2018, shall be disposed of by the learned Munsiff, expeditiously, at any rate, within a period of six months from the date of receipt of a copy of this judgment.

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8. Both the counsel appearing for the petitioners and the respondents would agree that they would co-operate with the Court in the matter of disposal of the suit and that they would not seek any unnecessary adjournment.

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9. It is brought to my notice that the plaintiffs have filed an application to implead the original owner of plaint A and B schedule properties. In case the said application is filed, learned Munsiff will ensure that pleadings on behalf of the additional defendants shall also be completed within a reasonable time, so as to ensure disposal

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OP(C) No.2083 of 2023

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of the suit, within the aforesaid period of six

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months.

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This Original Petition is disposed of, as

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above.

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Sd/-

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C.JAYACHANDRAN, JUDGE

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OP(C) No.2083 of 2023

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.5/2018 ON THE FILES OF THE MUNSIFF COURT, KOCHI.

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EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN OS NO.5/2018 ON THE FILES OF THE ADDITIONAL MUNSIFF COURT, KOCHI. EXHIBIT 3 TRUE COPY OF THE IA NO.1/2021 IN OS NO.5/2018 ON THE FILES OF THE MUNSIFF COURT, KOCHI.

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EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS HEREIN TO EXHIBIT P3, IA NO.1/2021 IN OS NO.5/2018 ON THE FILES OF THE MUNSIFF COURT, KOCHI.

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 15.07.2023 IN IA NO.1/2021 IN OS NO.5/2018 ON THE FILES OF THE MUNSIFF COURT, KOCHI

Roy Varghese v. Boban

Case brief

What is this about?

What did the court decide?

Roy Varghese v. Boban

Case brief

What is this about?

What did the court decide?

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