Benadict vs Saith

Benadict vs SAITH

Type Court Judgment Court Kerala Decided May 30, 2024

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https://sooperkanoon.com/case/1326731

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Citation: sooperkanoon.com/1326731
Court: Kerala High Court
Judge: Honourable Dr. Justice Kauser Edappagath
Decided On: May 30, 2024
Case Number: OP(C)/1151/2024

Parties & Advocates

Appellant / Petitioner

Benadict

Respondent

SAITH

Excerpt

.....paravur taluk, ernakulam, pin - 683512 this op (civil) having come up for admission on 30.05.2024, the court on the same day delivered the following: - : 2 :-judgmentext.p10 order dismissing an application for appointment of a commissioner under order 26 rule 9 of the code of civil procedure (for short, 'cpc) is under challenge.2. the petitioner is the plaintiff and the respondents arethe defendants in o.s.no.699 of 2017 on the files of the munsiff court, paravoor (for short, 'the trial court'). the suit is one for declaration of easement right by prescription over plaint b schedule way and for consequential permanent prohibitory injunction. a commission was taken out initially to identify the way. the said commission report was remitted at the instance of the defendants. the commissioner inspected the property again, and supplemental report and plan were filed. when the matter was listed, the plaintiff filed ext.p8 application to appoint another advocate commissioner to measure the property of the 1st defendant and the pathway allegedly situated on the northern side of the property of the 1st defendant with the assistance of the - : 3 :- private surveyor. the trial court, as per ext.p10 order, dismissed the said application. challenging the said order, the petitioner has approached this court.3. heard both sides.4. as stated already, the suit is filed for declaring theprescriptive easement right of the plaintiff over the plaint b schedule property and for consequential injunction. the commissioner inspected the property twice and submitted reports and plan. the way, servient tenement and the dominant tenements have been clearly specified in the report and marked in the plan. now the petitioner wants to measure the property of the 1st defendant and a pathway allegedly situated on the northern side of the property of the 1st defendant with the assistance of a private surveyor. since the suit is based on prescriptive easement right over the plaint.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 30TH DAY OF MAY 2024 / 9TH JYAISHTA, 1946 OS NO.699 OF 2017 OF MUNSIFF COURT, NORTH PARAVUR PETITIONER/PETITIONER/PLAINTIFF: BENADICT AGED 82 YEARS S/O VAREETH, OTTARAIKKAL HOUSE, KOTTUKAD KARA, CHENDAMANGALAM VILLAGE, PARAVUR TALUK, ERNAKULAM, PIN - 683512 BY ADVS. P.K.SREEVALSAKRISHNAN S.RENJITH S.UNNIKRISHNAN (NELLAD) K.R.PRATHISH RESPONDENTS/RESPONDENTS/DEFENDANTS: 1 SAITH AGED 78 YEARS S/O BAVA, VEZHAPILLI HOUSE, KOTTUKAD KARA, CHENDAMANGALAM VILLAGE, PARAVUR TALUK, ERNAKULAM, PIN - 683512 2 SAJAN AGED 51 YEARS S/O JOY, PULIKKAL HOUSE, KOTTUKAD KARA, CHENDAMANGALAM VILLAGE, PARAVUR TALUK, ERNAKULAM, PIN - 683512 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: - : 2 :-

JUDGMENT

Ext.P10 order dismissing an application for appointment of a Commissioner under Order 26 Rule 9 of the Code of Civil Procedure (for short, 'CPC) is under challenge.

2. The petitioner is the plaintiff and the respondents are

the defendants in O.S.No.699 of 2017 on the files of the Munsiff Court, Paravoor (for short, 'the trial court'). The suit is one for declaration of easement right by prescription over plaint B schedule way and for consequential permanent prohibitory injunction. A Commission was taken out initially to identify the way. The said commission report was remitted at the instance of the defendants. The Commissioner inspected the property again, and supplemental report and plan were filed. When the matter was listed, the plaintiff filed Ext.P8 application to appoint another Advocate Commissioner to measure the property of the 1st defendant and the pathway allegedly situated on the northern side of the property of the 1st defendant with the assistance of the - : 3 :- private surveyor. The trial court, as per Ext.P10 order, dismissed the said application. Challenging the said order, the petitioner has approached this Court.

3. Heard both sides.

4. As stated already, the suit is filed for declaring the

prescriptive easement right of the plaintiff over the plaint B schedule property and for consequential injunction. The Commissioner inspected the property twice and submitted reports and plan. The way, servient tenement and the dominant tenements have been clearly specified in the report and marked in the plan. Now the petitioner wants to measure the property of the 1st defendant and a pathway allegedly situated on the northern side of the property of the 1st defendant with the assistance of a private surveyor. Since the suit is based on prescriptive easement right over the plaint B schedule way, the point sought to be ascertained in the commission application is not at all necessary for resolving the controversy between the - : 4 :- parties. The trial court has rightly rejected Ext.P8 application. I find no illegality or impropriety in the impugned order. Accordingly, this original petition is dismissed. Sd/- DR.KAUSER EDAPPAGATH, JUDGE AS - : 5 :- APPENDIX OF OP(C) 1151/2024 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO. 699 OF 2017 OF MUNSIFF COURT NORTH PARAVUR FILED BY THE PETITIONER/ PLAINTIFF DATED 09.11.2017 EXHIBIT P2 TRUE COPY OF THE COMMISSION REPORT DATED

13.11.2017 SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A NO. 2405 OF 2017 IN O.S. NO. 699 OF 2017 OF MUNSIFF COURT NORTH PARAVUR EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT/1ST DEFENDANT DATED 10.04.2019 IN O.S. NO. 699 OF 2017 OF MUNSIFF COURT, N. PARAVUR EXHIBIT P4 TRUE COPY OF THE COMMISSION REPORT DATED 11.10.2023 IN I.A NO. 1 OF 2023 IN O.S. EXHIBIT P5 TTRUE COPY OF THE SALE DEED OF THE PLAINTIFF DATED 25.08.1994 BEARING NO. REGISTRAR OFFICE EXHIBIT P6 TRUE COPY OF THE SALE DEED DATED 25.08.1994 BEARING NO. 1575/1994 OF CHENDAMANGALAM SUB REGISTRAR OFFICE OF THE PREDECESSOR OF THE 1ST DEFENDANT EXHIBIT P7 TRUE COPY OF THE SALE DEED DATED 25.08.2012 BEARING NO.1767/2012 OF CHENDAMANGALAM SUB REGISTRAR OFFICE OF THE 1ST DEFENDANT EXHIBIT P8 TRUE COPY OF THE COMMISSION APPLICATION DATED 25.10.2023 FILED BY THE PETITIONER AS I.A NO. 2 OF 2023 IN O.S. NO. 699 OF 2017 OF MUNSIFF COURT, N. PARAVUR - : 6 :- EXHIBIT P9 TRUE COPY OF THE OBJECTION DATED 28.10.2023 FILED BY THE 1ST DEFENDANT TOWARDS THE I.A. NO. 2 OF 2023 IN O.S. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 30.11.2023 OF DISMISSAL OF I.A NO.2 OF 2023 IN O.S. PARAVUR BY THE HONORABLE MUNSIFF COURT

Same Court & Year Kerala · 2024 Same Parties Benadict vs SAITH Same Judge Honourable Dr. Justice Kauser Edappagath