Johnson, vs Kunjumon,

Type Court Judgment Court Kerala Decided Mar 09, 2022

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https://sooperkanoon.com/case/1445187

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Citation: sooperkanoon.com/1445187
Court: Kerala High Court
Judge: Honourable Mr. Justice a. Badharudeen
Decided On: Mar 09, 2022
Case Number: OP(C)/175/2022

Parties & Advocates

Appellant / Petitioner

Johnson,

Respondent

Kunjumon,

Excerpt

.....in ext.p4. therefore, appointment of another commission is not necessary to decide the final decree.5. on perusal of the plan along with the reportthat has been highlighted, i am also convinced. in view of the matter, appointment of a second commission, as allowed by the learned munsiff as per the impugned order, is not required for the decision of the final decree application pending. ..6.. therefore, the said order is set aside and this original petition stands allowed as above. registry is directed to forward a copy of thisjudgment to the court below concerned within seven days.sd/- a.badharudeen, judge rkj ..7.. appendix of op(c) 175/2022 petitioner exhibits exhibit p1 true copy of the judgment and decree in o.s. no. 385/2001 on the file of the munsiffs court punalur. exhibit p2 true copy of the judgment dated 09.10.2019 in rsa no. 199/2010 before the honourable high court of kerala. exhibit p3 true copy of the petition in i.a. no. before the munsiffs court. punalur. exhibit p4 true copy of the commission report dated 03.07.2009 in fd o.s. no. punalur. exhibit p5 true copy of the final decree application as i.a. no. 2/20 in fd o.s. no. 385/2001 on the file of the munsiffs court punalur. exhibit p6 a true copy of the final decreeapplication dated 1.10.21 filed by the ist respondent in fd o.s. no. 385/2001 on the file of the munsiffs court punalur.exhibit p7 true copy of the petition in i.a. no. files of the munsiff 's court, punalur. exhibit p8 true copy of the i.a. no. 2234/2019 in fd os no. 385/2001 before the munsiffs court, punalur. ..8.. exhibit p9 true copy of the petition in i.a. no. files of the munsiffs court, punalur. exhibit p10 true copy of the objection dated 24.11.2020 filed by the petitioner in fd o.s. no. 385/2001 before the munsiffs court, punalur. exhibit p11 true copy of the order dated 13.12.2021 in i.a. no. 2/21 in fd o.s. no. 385/2001 on the files of the munsiffs court punalur.

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 9TH DAY OF MARCH 2022 / 18TH PHALGUNA, OP(C) NO. 175 OF 2022 AGAINST THE ORDER IN IA 2/2021 IN FD OS 385/2001 OF MUNSIFF COURT, PUNALUR PETITIONER/6TH RESPONDENT/6TH DEFENDANT: JOHNSON, AGED 53 YEARS S/O. KOCHUKUNJU, PANAMPADIKKALPUTHEN VEEDU, PANAYAM, YEROOR VILLAGE, PUNALUR, TALUK, KOLLAM DISTRICT 691 312. BY ADVS. SUBHASH CYRIAC S.SREEJITH ASHA JYOTHY SHEEBA JOSEPH RESPONDENTS/PETITIONER & RESPONDENT NOS.1, 3 TO 5, 7 & 8/PLAINTIFF & DEFENDANT NOS.2 TO 5, 7 & 8: 1 KUNJUMON, AGED 61 YEARS S/O. KOCHUKUNJU, PANAMPADIKKAL VEEDU, PANAYAM, YEROOR VILLAGE, PUNALUR TALUK, 2 VARGHESE, AGED 69 YEARS S/O. KOCHUKUNJU, NEW LAND ALAYAMON VILLAGE, FROM PANAMPADIKKAL VEEDU, PANAYAM , YEROOR VILLAGE, PUNALUR TALUK, ..2..
3 SKARIYA, AGED 70 YEARS S/O. KOCHUKUNJU, OIL PALM QUARTERS, 11TH MILE, YEROOR VILLAGE FROM PANAMPADIKKALPUTHEN VEEDU, PANAYAM , YEROOR, VILLAGE, PUNALUR TALUK, 4 ALIYAMMA, AGED 41 YEARS D/O. KOCHUKUNJU, PANAMPADIKKALPUTHEN VEEDU PANAYAM, YEROOR VILLAGE, PUNALUR TALUK, 5 LEELAMMA, AGED 57 YEARS D/O. KUNJAMMA, PULLANJIKKALAYIL VEEDU, MEENKULAM, CHANNAPPETTA VILLAGE FROM, PANAMPADIKKALPUTHEN VEEDU PANAYAM, YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT 691 311. 6 SHEELAMMA, AGED 52 YEARS D/O. KUNJAMMA, MAMPACHA, MEENKULAM ALAYAMON VILLAGE FROM PANAMPADIKKALPUTHEN VEEDU, PUNALUR TALUK, KOLLAM DISTRICT 691 311. 7 SAJEEVAN AGED 53 YEARS S/O. KUNJAMMA PANAMPADIKKALPUTHEN VEEDU, PANAYAM, YEROOR VILLAGE, PUNALUR TALUK, ..3..
BY ADVS. S.SREEKUMAR (SR.) AKHIL K.MADHAV H.PRAVEEN (KOTTARAKARA) P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA AJAY BEN JOSE MANJUNATH MENON R.GITHESH SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..4.. ---------------------------------------------------

JUDGMENT

Order in I.A No. 2 of 2021 in FD O.S No.385 of 2001

on the files of the Munsiff's Court, Punalur dated 13.12.2021 is under challenge in this original petition filed under Article 227 of the Constitution of India.

2. Heard the learned counsel for the petitioner, who is the 6th defendant in the above suit as well as the learned counsel appearing for the 4 th defendant and the 7th defendant.

3. The precise case that has been put up by the

6th defendant/petitioner herein is that Ext. P4 commission report and plan available before the court below covers the entire extent of property including 20 cents covered by Ext.B1 ..5.. referred in the judgment viz., RSA Nos.662 of 2009 and 199 of 2010 dated 9th day of October 2019.

4. The learned Munsiff appointed another

Commissioner on the application filed by the 4 th defendant and 7th defendant on the premise that, the said property was not measured and incorporated in the plan. When the matter is heard in detail, the learned counsel appearing for the 4 th defendant and the 7th defendant conceded that property covered by Ext.B1 referred in the appellate judgment also has been incorporated in Ext.P4. Therefore, appointment of another commission is not necessary to decide the final decree.

5. On perusal of the plan along with the report

that has been highlighted, I am also convinced. In view of the matter, appointment of a second Commission, as allowed by the learned Munsiff as per the impugned order, is not required for the decision of the final decree application pending. ..6.. Therefore, the said order is set aside and this original petition stands allowed as above. Registry is directed to forward a copy of this

judgment to the court below concerned within seven days.

Sd/- A.BADHARUDEEN, JUDGE rkj ..7.. APPENDIX OF OP(C) 175/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT AND DECREE IN O.S. NO. 385/2001 ON THE FILE OF THE MUNSIFFS COURT PUNALUR. Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 09.10.2019 IN RSA NO. 199/2010 BEFORE THE HONOURABLE HIGH COURT OF KERALA. Exhibit P3 TRUE COPY OF THE PETITION IN I.A. NO. BEFORE THE MUNSIFFS COURT. PUNALUR. Exhibit P4 TRUE COPY OF THE COMMISSION REPORT DATED 03.07.2009 IN FD O.S. NO. PUNALUR. Exhibit P5 TRUE COPY OF THE FINAL DECREE APPLICATION AS I.A. NO. 2/20 IN FD O.S. NO. 385/2001 ON THE FILE OF THE MUNSIFFS COURT PUNALUR. Exhibit P6 A TRUE COPY OF THE FINAL DECREE

APPLICATION DATED 1.10.21 FILED BY THE IST RESPONDENT IN FD O.S. NO. 385/2001 ON THE FILE OF THE MUNSIFFS COURT PUNALUR.

Exhibit P7 TRUE COPY OF THE PETITION IN I.A. NO. FILES OF THE MUNSIFF 'S COURT, PUNALUR. Exhibit P8 TRUE COPY OF THE I.A. NO. 2234/2019 IN FD OS NO. 385/2001 BEFORE THE MUNSIFFS COURT, PUNALUR. ..8.. Exhibit P9 TRUE COPY OF THE PETITION IN I.A. NO. FILES OF THE MUNSIFFS COURT, PUNALUR. Exhibit P10 TRUE COPY OF THE OBJECTION DATED 24.11.2020 FILED BY THE PETITIONER IN FD O.S. NO. 385/2001 BEFORE THE MUNSIFFS COURT, PUNALUR. Exhibit P11 TRUE COPY OF THE ORDER DATED 13.12.2021 IN I.A. NO. 2/21 IN FD O.S. NO. 385/2001 ON THE FILES OF THE MUNSIFFS COURT PUNALUR.

Same Court & Year Kerala · 2022 Same Parties Johnson, vs Kunjumon, Same Judge Honourable Mr. Justice a. Badharudeen