Krishna Suresh vs Sheela

Type Court Judgment Court Kerala Decided Feb 21, 2022

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https://sooperkanoon.com/case/1442924

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Citation: sooperkanoon.com/1442924
Court: Kerala High Court
Judge: Honourable Mr. Justice a. Badharudeen
Decided On: Feb 21, 2022
Case Number: OP(C)/86/2022

Parties & Advocates

Appellant / Petitioner

Krishna Suresh

Respondent

Sheela

Excerpt

.....as early on 24.10.2019. therefore, the petitioner is liable to pay reasonable cost to the respondentherein. i impose cost of rs.6,000/- to be paid by the plaintiff/petitioner herein to the defendant for setting aside the impugned order. therefore, i am inclined to set aside ext.p5, after imposing the said cost, with a direction to the trial court to consider the same and pass orders, afresh, in order to get a plan measuring both a and b item of properties together inclusive of b schedule item no.1 to decide the dispute, provided the plaintiff shall pay rs.6,000/- (rupees six thousand only) as cost to the defendant in this matter within two weeks from today.in the result, this original petition stands allowed as indicated above. it is specifically ordered that if the cost ordered is not paid as directed, the order impugned shall stand confirmed and the munsiff is at liberty to go with the trial based on the available commission report and plan.registry is directed to forward a copy of this judgment to the court concerned, within seven days for information and compliance. sd/- a. badharudeen judge nkr appendix of op(c) 86/2022 petitioner exhibits exhibit p1 true copy of the suit in o.s no. 55/2012 filed before munsiff's court, attingal dated 01.02.2012 exhibit p2 true copy of the written statement filed by respondent dated 11.10.2011 exhibit p3 true copy of the commission report dated 24.10.2019 exhibit p3(a) true copy of the plan along with ext.p3. exhibit p4 true copy of the petition no.1/2020 dated 15.06.2020 in os no.55/2012 filed before the munsiff court, attingal. exhibit p5 true copy of the order dated 6.12.2021 in ia no.1/2020 in os no.55/2012 filed before the munsiff court, attingal. exhibit p6 true copy of the petition no.i.a.1980/19 in o.sno.55/2012 of the munsiff’s court, attingal to appoint a commissioner and surveyor

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 21ST DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943 AGAINST THE ORDER/JUDGMENT IN I.A.NO.1/2020 DATED 06.12.2021 IN OS PETITIONER/PLAINTIFF: KRISHNA SURESH AGED 41 YEARS D/O. SANTHAKUMARI AMMA, ARAPPURA VEEDU, SASTHAVATTOM, CHILAMBI DESOM, AZHOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV P.ANOOP (MULAVANA) RESPONDENTS/COUNTER PETITIONER/DEFENDANT: SHEELA D/O. APPUKUTTAN, VEENUS VEEDU, VALIYA ALA, KOONTHALLOOR DESOM, THIRUVANANTHAPURAM DISTRICT, IN - 695304. BY ADV M.R.SASITH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 21st day of February, 2022 This is an application filed by the plaintiff/petitioner, who is

aggrieved in the matter of dismissal of I.A.No.1/2020 as per order

dated 06.12.2021 in O.S.No.55/2012 on the files of the Munsiff’s Court, Attingal, under Article 227 of the Constitution of India.

2. Heard both sides in detail.

3. The grievance of the petitioner is that as per the

impugned order produced as Ext.P5, the learned Munsiff disallowed the prayer to remit back the commission report. It is submitted by the learned counsel for the petitioner that going by the report now produced, plaint B item No.1 property was not measured, on the submission that the counsel for the plaintiff insisted that the said item need not be measured.

4. I have perused the commission application produced

as Ext.P6, wherein there was a specific direction to the commissioner to measure out plaint item A and B schedule properties based on title deed as well as survey records. Thus, prima facie, it appears that the present commission report and plan were filed without measuring plaint B item No.1 property as per the narration in the report. If so, the grievance advanced by the plaintiff is having force.

5. Though the learned counsel for the defendants

attempted to justify the commission report. It is discernible that, non-measurement of plaint B item No.1 is a fatal in a suit for fixation of boundary. A relevant aspect to be noted in this case; in the report, the Commissioner stated that plaint B item No.1 property was not measured as directed by the counsel for the

plaintiff. Further there is delay in filing the commission application I.A.No.1/2020, in a case the earlier commission report and plan were filed as early on 24.10.2019. Therefore, the petitioner is liable to pay reasonable cost to the respondent

herein. I impose cost of Rs.6,000/- to be paid by the plaintiff/petitioner herein to the defendant for setting aside the impugned order. Therefore, I am inclined to set aside Ext.P5, after imposing the said cost, with a direction to the trial court to consider the same and pass orders, afresh, in order to get a plan measuring both A and B item of properties together inclusive of B schedule item No.1 to decide the dispute, provided the plaintiff shall pay Rs.6,000/- (Rupees six thousand only) as cost to the defendant in this matter within two weeks from today.

In the result, this Original Petition stands allowed as indicated above. It is specifically ordered that if the cost ordered is not paid as directed, the order impugned shall stand confirmed and the Munsiff is at liberty to go with the trial based on the available commission report and plan.

Registry is directed to forward a copy of this judgment to the court concerned, within seven days for information and compliance. Sd/- A. BADHARUDEEN JUDGE nkr APPENDIX OF OP(C) 86/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SUIT IN O.S NO. 55/2012 FILED BEFORE MUNSIFF'S COURT, ATTINGAL DATED 01.02.2012 Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENT DATED 11.10.2011 Exhibit P3 TRUE COPY OF THE COMMISSION REPORT DATED 24.10.2019 Exhibit P3(a) TRUE COPY OF THE PLAN ALONG WITH EXT.P3. Exhibit P4 TRUE COPY OF THE PETITION NO.1/2020 DATED 15.06.2020 IN OS NO.55/2012 FILED BEFORE THE MUNSIFF COURT, ATTINGAL. Exhibit P5 TRUE COPY OF THE ORDER DATED 6.12.2021 IN IA NO.1/2020 IN OS NO.55/2012 FILED BEFORE THE MUNSIFF COURT, ATTINGAL. Exhibit P6 TRUE COPY OF THE PETITION NO.I.A.1980/19 IN O.SNO.55/2012 OF THE MUNSIFF’S COURT, ATTINGAL TO APPOINT A COMMISSIONER AND SURVEYOR

Same Court & Year Kerala · 2022 Same Parties Krishna Suresh vs Sheela Same Judge Honourable Mr. Justice a. Badharudeen