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Victor vs Devassy

Victor vs Devassy

Type Court Judgment Court Kerala Decided Oct 25, 2019
~3 min read
https://sooperkanoon.com/case/1888257

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Citation
Court
Kerala High Court
Judge
Decided On
Case Number
OP(C)/13/2018

Parties & Advocates

Appellant / Petitioner

Victor

Respondent

Devassy

Excerpt

.....the possession of the plaintiff over the property is to be established by the plaintiff. for establishing the possession, it is necessary to identify the property. without identifying the property, the possession of the plaintiff over the property could not be established. the court below further observed that there wasno prayer in the plaint for fixation of boundary. there is also no prayer for declaration. in the said circumstances, thecourt below found that there was no need to identify the property with the assistance of -5- the surveyor in this case. having gone through ext.p5 order, i do not find any reason to interfere with the said finding. in the result, this original petition stands dismissed. however, this order will not stand in the way of the petitioner in filing fresh application, in accordance with law, if the relief sought for is permitted to be amended.sd/- b. sudheendra kumar, judge stk -6- appendix petitioner's/s exhibits: exhibit p1 true copy of plaint in o.s. no. 803 of 2015 on the files of munsiff's court, exhibit p2 true copy of written statement in o.s. no. 803 of 2015 on the files of munsiff's court, chalakkudy. exhibit p3 true copy of commission report and sketch dated 29.09.2016 in o.s. no. 803 of 2015 on the files of munsiff court, exhibit p4 true copy of application in i.a. no. 1240 of 2017 in o.s. no. 803 of 2015 on the files of munsiff's court, exhibit p5 true copy of order dated 04.07.2017 in i.a. no.1240 of 2017 in o.s. no. 803 of 2015 passed by munsiff court,

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941 AGAINST THE ORDER/JUDGMENT IN OS 803/2015 DATED 04-07-2017 OF MUNSIFF COURT, CHALAKUDY PETITIONER/S: VICTOR S/O. NALPATT @ NALPADAN DAVIS @DEVASSY, AGED 67, KORATTY DESOM, MURINGOOR THEKKUMURY VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT/S:

1 DEVASSY S/O. MAZHUVANCHERY LATE PYLOTH, KORATTY DESOM , MURINGOOR THEKKUMURY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT-680 309 2 ANIE W/O. MAZHUVANCHERY DEVASSY, KORATTY DESOM , MURINGOOR THEKKUMURY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT-680 309 R1 BY ADV. SRI.DENNY DEVASSY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-

JUDGMENT

The petitioner is the plaintiff in O.S.No.803/2015 on the files of the court below. The petitioner filed I.A.No.1240/2017, praying for appointing an Advocate Commissioner to inspect the property with the assistance of a Surveyor.

The court below as per Ext.P5 order

dismissed the said application, against which, this original petition has been filed.

2. Heard.

3. The suit is for permanent prohibitory injunction, restraining the defendents from obstructing the construction -3- of a compound wall on the western side of

the     property           of     the            plaintiff.           The
contention          of    the     petitioner             is   that    the
identity       of    the        plaint           scheduled       property
had     been        disputed               by      the     defendants.

Therefore, it is necessary to identify the western boundary of the plaint scheduled property. The defendents would contend that an Advocate Commissioner was appointed earlier and the said Advocate Commissioner

had    already           filed    a        report        stating     that
there    was    a        compound          wall     on     the    western
side    of      the        plaint           scheduled         property.
However,       the         Advocate              Commissioner       could

not state about the ownership of the land where the said compound wall was constructed. -4- The court below observed that since the suit is only a suit for injunction on the basis of the possession of the plaintiff over the property, the possession of the plaintiff over the property is to be established by the plaintiff. For establishing the possession, it is necessary to identify the property. Without identifying the property, the possession of the plaintiff over the property could not be established. The court below further observed that there was

no    prayer    in     the     plaint       for   fixation   of
boundary.        There        is     also    no   prayer     for
declaration.         In the said circumstances, the

court below found that there was no need to identify the property with the assistance of -5- the surveyor in this case. Having gone through Ext.P5 order, I do not find any reason to interfere with the said finding. In the result, this original petition stands dismissed. However, this order will not stand in the way of the petitioner in filing fresh application, in accordance with law, if the relief sought for is permitted to be amended.

Sd/- B. SUDHEENDRA KUMAR, JUDGE STK -6- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO. 803 OF 2015 ON THE FILES OF MUNSIFF'S COURT, EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT IN O.S. NO. 803 OF 2015 ON THE FILES OF MUNSIFF'S COURT, CHALAKKUDY. EXHIBIT P3 TRUE COPY OF COMMISSION REPORT AND SKETCH DATED 29.09.2016 IN O.S. NO. 803 OF 2015 ON THE FILES OF MUNSIFF COURT, EXHIBIT P4 TRUE COPY OF APPLICATION IN I.A. NO. 1240 OF 2017 IN O.S. NO. 803 OF 2015 ON THE FILES OF MUNSIFF'S COURT, EXHIBIT P5 TRUE COPY OF ORDER DATED 04.07.2017 IN I.A. NO.1240 OF 2017 IN O.S. NO. 803 OF 2015 PASSED BY MUNSIFF COURT,

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