Challenge to rejection of an application to remit an Advocate Commissioner's report and plan in a title declaration and boundary demarcation suit. The High Court found the Commissioner had properly identified properties per title deeds, field measurement book and A Register, and dismissed the petition.
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 DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 9TH DAY OF APRIL 2024 / 20TH CHAITHRA, 1946
OP(C) NO. 606 OF 2023
AGAINST THE ORDER DATED 16.08.2022 IN I.A.NO.6/2022 IN OS NO.56 OF 2019 OF II ADDITIONAL SUB COURT,KOZHIKODE
PETITIONER/PETITIONER IN IA/DEFENDANT NO.1 IN OS:
PORASSERY AMRITHA AGED 41 YEARS D/O VENUGOPALAN, P.O. CHELANNUR, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673616 BY ADVS. MANU VYASAN PETER P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE CHITHIRA VENUGOPAL
RESPONDENTS/RESPONDENTS IN IA/PLAINTIFFS AND DEFENDANT NO.2 IN O.S.:
1 POKKALI SURESHBABU S/O RARAMMADATHIL PADMANABHAN, P.O. CHELANNUR, THAMARASSERY AMSOM DESOM, KOZHIKODE DISTRICT, PIN - 673616
2 POKKALI SWAMY NADHAN S/O RARAMMADATHIL PADMANABHAN, P.O. CHELANNUR, THAMARASSERY AMSOM DESOM, KOZHIKODE DISTRICT, PIN – 673616
OP(C) NO. 606 OF 2023
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3 PORASSERY MRIDULA D/O VENUGOPALAN, P.O. CHELANNUR, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673616 BY ADVS. P.K.RAMKUMAR SUBIN P.M.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 606 OF 2023
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JUDGMENT
Exhibit P11 order rejecting an application to remit the Commissioner’s report under Order 26 Rule 10(3) of CPC is under challenge in this Original Petition.
defendant in O.S No. 56 of 2019 on the file of the Sub Court-II, Kozhikode (for short, “the
Trial Court”). The respondents are the
plaintiffs and defendant No.2.
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for issuance of survey commissioner to identify the plaint schedule properties. Accordingly, the Commissioner with the assistance of the Surveyor inspected the properties and filed Ext.C1 report and plan. The plaintiffs filed IA 2/2020 to remit the report and plan, which was allowed. The Advocate Commissioner again inspected the properties and filed Exts.C2 report and C2(a) plan. The petitioner herein filed IA No.6 of
2022 to remit Exts.C2 and C2(a) plan.
dismissed the said application as per Ext.P11 order
petitioner as well as the learned counsel for the respondents.
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schedule properties properly and shown the defendant’s property as that of the plaintiff’s property. (ii) The Commissioner failed to
measure the properties on the basis of Exts.A1 and A2 judgment and decree.
So far as the first ground is concerned,
the allegation is so vague. The petitioner simply stated that the Commissioner has shown
the defendant’s property as that of the plaintiffs’ property. There is no allegation that the measurements shown are not correct. The Commissioner was examined by the Trial Court in IA No. 6/2022. The evidence of the Commissioner coupled with Exts.C2 and C2(a) would show that the Commissioner identified the properties on the basis of title deeds. It would also shows that the Commissioner with the help of the field measurement book and A Register identified common re-survey boundary line. So far as the
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second ground is concerned, the case of the petitioner is that the plaint A schedule property was the subject matter of Exts. A1 and A2 judgment and decree and hence the property has to be measured in terms of A1 decree. The Commissioner when examined, stated that the petitioner did not make any request to measure the property as per Exts.A1 and A2. Exts.A1 and A2 were not admittedly made available to the Commissioner. The petitioner also did not file any work memo to the Commissioner to identify the properties in terms of Exts. A1 and A2 judgment and decree. Since the suit is one for declaration of title and for demarcation of common boundary separating the plaint A and B schedule properties, for proper adjudication of the dispute between the parties, the properties are to be identified as per the title deeds, which has been rightly done by the Commissioner.
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I find no illegality or impropriety in the impugned order. Accordingly, the original petition is dismissed without prejudice to the right of the petitioner to challenge the Commissioner’s report and plan at the time of trial.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
mus
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APPENDIX OF OP(C) 606/2023
PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT DATED 10.04.2019 IN O.S NO. 56 OF 2019 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOZHIKODE
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 17.10.2019 IN O.S NO. 56 OF 2019 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT - II, KOZHIKODE
Exhibit P3 TRUE COPY OF THE COMMON JUDGMENT DATED 26.03.2011 IN O.S NO. 39 OF 1989, O.S NO. 339 OF 1990 AND O.S NO. 60 OF 2002 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, KOZHIKODE
Exhibit P4 TRUE COPY OF THE COMMON JUDGMENT DATED 31.03.2014 IN A.S NO. 95 OF 2011, A.S NO. 85 OF 2011 AND A.S NO. 90 OF 2011 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOZHIKODE
Exhibit P5 TRUE COPY OF THE REPORT DATED 08.07.2020 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S NO. 56 OF 2019 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT - II, KOZHIKODE
Exhibit P6 TRUE COPY OF THE REPORT DATED 13.12.2021 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S NO. 56 OF 2019 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT - II, KOZHIKODE
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| Exhibit P7 | TRUE COPY OF THE PLAN SUBMITTED |
|---|---|
| ALONG WITH THE COMMISSION REPORT | |
| DATED 13.12.2021 IN O.S NO. 56 | |
| OF 2019 ON THE FILE OF THE | |
| SUBORDINATE JUDGE'S COURT - II, KOZHIKODE |
|
| Exhibit P8 | TRUE COPY OF THE I.A NO. 6 OF |
| 2022 DATED 14.07.2022 IN O.S NO. | |
| 56 OF 2019 ON THE FILE OF THE | |
| SUBORDINATE JUDGE'S COURT - II, KOZHIKODE |
|
| Exhibit P9 | TRUE COPY OF THE OBJECTION DATED |
| 20.07.2022 IN I.A NO. 6 OF 2022 | |
| IN O.S NO. 56 OF 2019 ON THE | |
| FILE OF THE SUBORDINATE JUDGE'S COURT - II, KOZHIKODE |
|
| Exhibit P10 | TRUE COPY OF THE DEPOSITION DATED 12.08.2022 |
| Exhibit P11 | TRUE COPY OF THE ORDER DATED |
| 16.08.2022 IN I.A NO. 6 OF 2022 | |
| IN O.S NO. 56 OF 2019 ON THE | |
| FILE OF THE SUBORDINATE JUDGE'S COURT - II, KOZHIKODE |
|
| RESPONDENT EXH | IBITS |
| Exhibit-RI-A | Assignment deed no.251 of 2021 . |
1 issue framed by the court
Whether the trial court erred in rejecting the application to remit the Commissioner's report and plan under Order 26 Rule 10(3) CPC.
1 provisions across 1 enactments
Porassery Amritha
Pokkali Sureshbabu
Pokkali Swamy Nadhan
Porassery Mridula
Kauser Edappagath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
