A.P.Alias, vs Abraham Thariyan,

Type Court Judgment Court Kerala Decided Feb 28, 2019

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https://sooperkanoon.com/case/1871721

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Citation: sooperkanoon.com/1871721
Court: Kerala High Court
Judge: Honourable Mr. Justice Sathish Ninan
Decided On: Feb 28, 2019
Case Number: OP(C)/595/2019

Parties & Advocates

Appellant / Petitioner

A.P.Alias,

Respondent

Abraham Thariyan,

Excerpt

.....court, aluva. exhibit p3 a true copy of the plaint in os no 433/2009 on the files of munsiff court aluva filed by the petitioners. exhibit p4 a true copy of the report along with the sketh filed by the advocate commissioner in os no exhibit p5 a true copy of the written statement filed by the respondent herein in os 433/2009 on the files of munsiff court, aluva. exhibit p6 a true copy of the report with the sketch prepared by the advocate commissioner in os no exhibit p7 a true copy of the report submitted by the advocate commissioner with plan in ia no munsiff court aluva exhibit p7(a) a true copy of the objection filed by the petitioners to exhibit p7 report exhibit p8 a true copy of ia no 1664/2018 in ia 1698/2010 in os no 368/2010 on the files of munsiff court, exhibit p9 a true copy of the objection filed by the respondent to ia no 1664/2018 in ia 1698/2010 in os no 368/2010 on the files of munsiffs court exhibit p10 a true copy of the certified copy of the litho sketch prepared after the formation of rail and relied on by the surveyor. exhibit p11 a true copy of the order passed by the learned munsiff rejecting ia no 1664/2018 in ia 1698/2010 in os no 368/2010 on the files of munsiff court,

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE SATHISH NINAN THURSDAY, THE 28TH DAY OF FEBRUARY 2019/9TH PHALGUNA, 1940 (AGAINST THE ORDER DATED 11-01-2019 IN I.A.No.1664/2018 IN I.A.No.1698/2010 IN O.S.No.368/2010 OF MUNSIFF COURT, ALUVA) PETITIONERS/PETITIONERS/DEFENDANTS: 1 A.P.ALIAS, AGED 57 YEARS, S/O POULOSE, ARRECKAL HOUSE, MEKKAD DESOM, VAPPALASSERRY VILLAGE, ALUVA TALUK, PIN 683 572. 2 A.P.JOSE, AGED 67 YEARS, S/O POULOSE, AREECKAL HOUSE, MEKKAD DESOM, VAPPALASSERRY VILLAGE, ALUVA TALUK, PIN 683 572. BY ADV. SRI.B.JAYASANKER RESPONDENT/RESPONDENT/PLAINTIFF: ABRAHAM THARIYAN, AGED 65 YEARS, S/O LATE A.P.THARIYAM, AREECKAL HOUSE, MEKKAVU DESOM, VAPPALASSERY KARA, NEDUMBASSERY VILLAGE, ALUVA TALUK, PIN 683 572. BY ADVS. SRI.P.G.SURESH SMT.ASWATHY KRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

JUDGMENT

The dismissal of an application seeking to set aside the Commissioner's report and plan is under challenge by the defendants in the suit. The suit is for fixation of boundary and

other reliefs. The petitioner/defendant filed the application as I.A.No.1664/2018 seeking to set aside the Commissioner's report and plan, alleging that the measurement done by the Commissioner is not proper and that the report is not in confirmity with the title deed of the parties. The court below as per the impugned order dismissed the application.

Heard both sides. It appears that there is another Commissioner's report and plan prepared in O.S.No.433/2009, which is relied on by the petitioners/defendants. As to the

acceptability      and     reliability         of   the    said
plan    and     report     and    also    regrading        the
correctness      or   otherwise      of       the   plan   and

report obtained in the present suit, evidence can be adduced during the course of trial. Based on such evidence, the court below can consider which among the reports is to be accepted and pass appropriate orders. I do not think it necessary to go into the merits of the rival contentions regarding the acceptability or otherwise of the report and plan at this stage. It is made clear that, the court below shall be entitled to consider the question, notwithstanding the order dated 11.1.2019 in I.A.No.1664/2018.

The original petition is disposed of accordingly. Sd/- SATHISH NINAN JUDGE ss APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE PLAINT IN OS NO 368/2010 ON THE FILES OF MUNSIFF COURT, ALUVA. EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN OS NO 368/2010 ON THE FILES OF MUNSIFF COURT, ALUVA. EXHIBIT P3 A TRUE COPY OF THE PLAINT IN OS NO 433/2009 ON THE FILES OF MUNSIFF COURT ALUVA FILED BY THE PETITIONERS. EXHIBIT P4 A TRUE COPY OF THE REPORT ALONG WITH THE SKETH FILED BY THE ADVOCATE COMMISSIONER IN OS NO EXHIBIT P5 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT HEREIN IN OS 433/2009 ON THE FILES OF MUNSIFF COURT, ALUVA. EXHIBIT P6 A TRUE COPY OF THE REPORT WITH THE SKETCH PREPARED BY THE ADVOCATE COMMISSIONER IN OS NO EXHIBIT P7 A TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER WITH PLAN IN IA NO MUNSIFF COURT ALUVA EXHIBIT P7(a) A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS TO EXHIBIT P7 REPORT EXHIBIT P8 A TRUE COPY OF IA NO 1664/2018 IN IA 1698/2010 IN OS NO 368/2010 ON THE FILES OF MUNSIFF COURT, EXHIBIT P9 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO IA NO 1664/2018 IN IA 1698/2010 IN OS NO 368/2010 ON THE FILES OF MUNSIFFS COURT EXHIBIT P10 A TRUE COPY OF THE CERTIFIED COPY OF THE LITHO SKETCH PREPARED AFTER THE FORMATION OF RAIL AND RELIED ON BY THE SURVEYOR. EXHIBIT P11 A TRUE COPY OF THE ORDER PASSED BY THE LEARNED MUNSIFF REJECTING IA NO 1664/2018 IN IA 1698/2010 IN OS NO 368/2010 ON THE FILES OF MUNSIFF COURT,

Same Court & Year Kerala · 2019 Same Parties A.P.Alias, vs Abraham Thariyan, Same Judge Honourable Mr. Justice Sathish Ninan