Plaintiff challenged a trial court order allowing a commission application whose third prayer went beyond the reliefs directed in the first appeal and second appeal judgments. The High Court sustained the order but clarified that only the entire 26 cents of land need be measured to identify the plaint and counter claim schedule properties.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
OP(C) NO. 2707 OF 2023
AGAINST THE ORDER/JUDGMENT OS 179/2011 OF MUNSIFF COURT, PUNALUR
PETITIONER/RESPONDENT/PLAINTIFF:
KALA S
AGED 44 YEARS
WIFE OF SRI. ANIL KUMAR SIVASAKTHI VILLA, PLACHERY P
O, KALAYANADU VALACODE VILLAGE, PUNALUR TALUK,
PIN - 691331
BY ADV BINU MATHEW
RESPONDENTS/PETITIONERS/DEFENDANTS:
1BIJU
S/O PEETHAMBARAN ,NEDUMPARAMBIL VEEDU PLACHERY P O ,
VALACODE VILLAGE ,PUNALUR TALUK, KOLLAM .
PIN - 691331
2GANGADHARAN
AGED 74 YEARS
VALUTHUNDIL VEEDU ,PLACHERY P O , KALAYANADU
VALACODE VILLAGE, PUNALUR TALUK, KOLLAM ,
PIN - 691331
3REGHUNADHAN
AGED 56 YEARS
S/O RAJAMMA, BAKTHI VILASAM VEEDU, PLACHERY P. O.
VALACODE VILLAGE, PUNALUR TALUK, KOLLAM ,
PIN - 691331
4SIVADASAN
AGED 64 YEARS
S/O RAGHAVAN, LALITHA VILASOM VEEDU, PLACHERY P O ,
VALACODE VILLAGE PUNALUR TALUK, KOLLAM, PIN - 691331
O.P.(C) NO.2707 OF 2023
2
5SANTHOSH KUMAR
AGED 47 YEARS
S/O SASIDHARAN , SANTHOSH BHAVAN, PLACHERY P. O.
VALACODE VILLAGE, PUNALUR TALUK, KOLLAM, NOW
RESIDING AT " GOPIKA SADANAM", PLACHERY P. O.
VALACODE VILLAGE, PUNALUR TALUK, KOLLAM,
PIN - 691331
6OMANAKUTTAN
AGED 49 YEARS
S/O DEVAYANI, BHAKTHIVILASOM MELATHIL, PLACHERY
P. O.VALACODE VILLAGE, PUNALUR TALUK, KOLLAM .,
PIN - 691331
7SUDHEESH
AGED 48 YEARS
S/O SARASWATHY, VALUTHUNDIL VEEDU, PLACHERY P. O.
VALACODE VILLAGE, PUNALUR TALUK ,KOLLAM.,
PIN - 691331
8 SANTHOSH AGED 41 YEARS S/O BHASKARAN, LALITHA VILASOM VEEDU PLACHERY P O , VALACODE VILLAGE, PUNALUR TALUK., PIN - 691331 BY ADV SREEJITH STHIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) NO.2707 OF 2023
3
JUDGMENT
The plaintiff in O.S. No.179/2011 of the Munsiff
Court, Punalur is the petitioner herein. He is
aggrieved by Ext.P8 order, which allowed Ext.P6
commission application. According to the petitioner,
the short compass of controversy is with respect to
prayer No.3 in Ext.P6 application, which is beyond the
scope of the reliefs claimed for in the counter claim.
It was also contended that relief No.3 sought for is
not strictly in accord with the mandate in Ext.P4
first appellate judgment and Ext.P5 judgment of this
Court in the second appeal.
2. Heard the learned counsel appearing for the
petitioner and the learned counsel for the
respondents.
3. Learned counsel for the respondents submits
that Ext.P4 judgment categorically directs in
O.P.(C) NO.2707 OF 2023
4
paragraph No.12, that the measurement of the entire 26
cents of land is required to identify the plaint
schedule property and the counter claim schedule
property. There is also an observation that, if there
is reduction in the extent of plaint schedule
property, the same can also be reported, on which
basis the properties of the parties can be identified.
It is the specific submission of the learned counsel
for the respondent that the said observation has not
been dislodged in Ext.P5 judgment of this Court
dismissing the second appeal. In the circumstances,
there is nothing wrong in prayer No.3 to Ext.P6
commission application, is the submission made by the
learned counsel for the petitioner.
4. This was seriously opposed by the learned
counsel for the petitioner. Learned counsel would,
however, clarify that the petitioner is not against
measuring the entire 26 cents of land for the purpose
O.P.(C) NO.2707 OF 2023
5
of locating the plaint and counter claim schedule
properties.
5. Having heard the learned counsel appearing on
both sides, this Court is in the opinion that the
Original Petition can be disposed of sustaining Ext.P8
order, however with a clarification. As rightly
contended by the learned counsel for the respondent,
there is a peremptory direction/observation in Ext.P4
judgment of the learned Sub Judge that the measurement
of the entire extent of 26 cents of land, which
allegedly belonged to one Kesavan, is required to
ascertain and identify the plaint and counter claim
schedule properties. The reduction in the extent, if
any, was also directed to be reported, so as to have a
correct identification and location of the scheduled
properties. It is true that these directions as
contained in Ext.P4 judgment has not been interfered
by this Court in Ext.P5 judgment. That being so, there
O.P.(C) NO.2707 OF 2023
6
cannot be any controversy/dispute with respect to
measurement of the entire extent of 26 cents, to which
learned counsel for the petitioner also has no
objection. However, point No.3 which is sought to be
ascertained in Ext.P6 commission application is the
fulcrum of dispute and is therefore extracted here
below:
…………………… 3. പതിക ്ര പ ്പ ടിക ്ട 4 സ�ൻ്റ െ ം ു അതിന്വടക ്ക ുള ്ള വാദി കലപ�ർക േ ്ക ുള ്ള 14346- ാ�ം നമ ്പ ർതണ ്ട പപ േ ്പ രും പകാരമുള ്ള 14 സ�ന െ ് റ ഉൾപ ് പ പ ്പെ ട 18 പ ്പെ �ന ് റ സ ്ഥ ലമലാത ്ല � െ അതിർതിയ്ക ്ത ്ക ുളിൽ 826/2006- ാ�ം നമ ്പ ർ പമാണത ്ര ്ത ിൽ വിവരിയ്ക ്ക ുന ്ന പ ്ര കാരമ ു ള 26 പ ്പെ �ന ് റ വ�്തുപവാ േ 22 പ ്പെ �ൻ്റ്വ�്തുപവാഉപ േ ണ േ ്ട ാഎന ്ന സർത� െ പ ്പെ 'യ്ത് �രിപ(ാധിച േ ് റികാർഡു ്ക പ ്പെ 'യ്ത് പ ്ല ാൻ �യ ്യ ാറാക ്ക ണം. …………………………………………….
6. This Court is in the opinion that the
measurement in terms of point No.3, as extracted
above, is not strictly required. Nor does such a
measurement emanates from Ext.P4 judgment of the
learned Sub Judge, or for that matter, Ext.P5 judgment
of this Court. Both the judgments only directed
O.P.(C) NO.2707 OF 2023
7
measurement of the entire 26 cents of the land for
proper identification of the plaint and counter claim
schedule properties. In the circumstances, the
requirements will be satisfied, if the entire 26
cents of land is measured out, so as to identify the
plaint and counter claim schedule properties; focus
and thrust being on the identification of the plaint
and counter claim schedule properties. Ext.P8 order
will stand modified to the limited extent indicated
above.
With this observation, this Original Petition will
stand disposed of.
Sd/C. JAYACHANDRAN JUDGE
BR
O.P.(C) NO.2707 OF 2023
8
APPENDIX OF OP(C) 2707/2023
PETITIONER’S EXHIBITS
Exhibit P1TRUE COPY OF THE AMENDED PLAINT WITH
DOCUMENTS IN OS NO.179/2011 OF MUNSIFF
COURT, PUNALUR
Exhibit P2TRUE COPY OF THE WRITTEN STATEMENT DATED
03-11-2011 IN OS NO.179/2011 OF MUNSIFF
COURT, PUNALUR
Exhibit P3TRUE COPY OF THE JUDGMENT DATED 14.03.2018
IN OS NO.179/2011 OF MUNSIFF COURT,
PUNALUR
Exhibit P4TRUE COPY OF THE JUDGMENT DATED 21-12-2019
IN AS NO.46/2018 OF SUB COURT, PUNALUR
Exhibit P5TRUE COPY OF THE JUDGMENT DATED 23-08-2022
IN FAO (RO) NO. 7/2021
Exhibit P6TRUE COPY OF THE I.A. 1/2021 IN OS
NO.179/2011 OF MUNSIFF COURT, PUNALUR
DATED 18.01.2021
Exhibit P7TRUE COPY OF THE OBJECTION DATED
06-03-2023 IN I.A. 1/2021 IN OS
NO.179/2011 OF MUNSIFF COURT, PUNALUR
Exhibit P8TRUE COPY OF THE ORDER DATED 04-10-2023 IN
I.A. 1/2021 IN OS NO.179/2011 OF MUNSIFF
COURT, PUNALUR
RESPONDENT’S EXHIBITS: NIL
1 issue framed by the court
Whether prayer No.3 of the commission application, allowing measurement beyond the 26 cents directed in the appellate judgment, was within scope?
Kala S
Biju
Gangadharan
Reghunadhan
Sivadasan
Santhosh Kumar
C. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court