Rev.Fr.James Puthenpura Vs. Rev.Fr.Jolly Joseph - Court Judgment

IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE30H DAY OF JANUARY201510TH MAGHA, 1936 OP(C).No. 2966 of 2014 (O) --------------------------- AGAINST ORDER

IN I.A.NO.2387 OF2013IN O.S.NO.45 OF2012OF ADDITIONAL MUNSIFF COURT,KOLLAM. PETITIONER(S): -------------------------- REV.FR.JAMES PUTHENPURA, AGED73YEARS, S/O.MATHAI, FORMER VICAR ST.ANTONY'S CHURCH KANJIRAKODE MURI, MULAVANA VILLAGE, KOLLAM TALUK KOLLAM DISTRICT-691501. BY ADVS.SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY RESPONDENT(S): --------------------------- 1. REV.FR.JOLLY JOSEPH, AGED47YEARS SON OF JOSEPH, RESIDING ATROSE DALE, KANJIRAKODE MURI MULAVANA VILLAGE, KOLLAM TALUK KOLLAM DISTRICT - 691 501.

2. J.JAYAN, AGED36YEARS SON OF JOSEPH, KSEB EMPLOYEE, RESIDING ATROSE DALE KANJIRAKODE MURI, MULAVANA VILLAGE, KOLLAM TALUK KOLLAM DISTRICT - 691 501.

3. K.C.JOSE, AGED61YEARS SON OF KUCHUKURISH, RESIDING AT KUNNUVILAVEEDU KANJIRAKODE MURI, MULAVANA VILLAGE, KOLLAM TALUK KOLLAM DISTRICT - 691 501 (FORMER COMMITTEE MEMBER).

4. FULGINS, AGED61YEARS SON OF MARIYAN, RESIDING ATVIRGIN DALE PANAYAMCODE MURI, MULAVANAVILLAGE, KOLLAM TALUK KOLLAM DISTRICT - 691 501(FORMER COMMITTEE MEMBER).

5. PIUS, AGED70YEARS SON OF ANTONY, RESIDING AT THEKKEPOIKA CHARUVILAVEEDU, KANJIRAKODE MURI, MULAVANA VILLAGE KOLLAM TALUK - 691 501 KOLLAM DISTRICT (FORMER COMMITTEE MEMBER).

6. JOHNSON, AGED51YEARS SON OF JOSEPH, CHAZHIKKAN RESIDING ATPOOKOLY, KANJIRAKODE MURI, MULAVANA VILLAGE, KOLLAM TALUK KOLLAM DISTRICT - 691 501. R3 TO R6 BYADV. SRI.ASHOK SURESH R1 BY FR.JOLLY JOSEPH (PARTY IN PERSON) THIS OP (CIVIL) HAVING BEEN FINALLYHEARD ON3001-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2966 of 2014 (O) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1. THE TRUE COPY OF THE PLAINT IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT, KOLLAM. EXHIBIT P2. THE TRUE COPY OF THE I.A.NO.304/2012 IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT,KOLLAM. EXHIBIT P3. THE TRUE COPY OF THE OBJECTION FILED BY DEFENDANTS TO I.A.NO.304/2012 IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT, KOLLAM. EXHIBIT P4. THE TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT,KOLLAM. EXHIBIT P5. THE TRUE COPY OF THE ORDER

DATED0207.2014 OF DISTRICT COURT KOLLAM IN O.P(TP)46/2014. EXHIBIT P6. THE TRUE COPY OF THE JUDGMENT

DATED1609.2014 IN OP(C)NO.1937/2014 OF THIS COURT. EXHIBIT P7. THE TRUE COPY OF THE REPORT FILED ADVOCATESHANI B. DATED0102.2012 IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT,KOLLAM. EXHIBIT P8. THE TRUE COPY OF THE REPORT IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT, KOLLAM ALONG WITH THE SURVEY PLAN. EXHIBIT P9. THE TRUE COPY OF THE REPORT DATED0707.2012 IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT, KOLLAM. EXHIBIT P10. THE TRUE COPY OF THE REPORT DATED1102.2013 IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT, KOLLAM. EXHIBIT P11. THE TRUE COPY OF THE REPORT OF ADVOCATE K.JAYAN DATED1603.2013 IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT,KOLLAM. EXHIBIT P12. THE TRUE COPY OF THE COMMISSION APPLICATION NO.I.A.NO.2387/2013 IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT,KOLLAM. EXHIBIT P13. THE TRUE COPY OF THE OBJECTION DATED1912.2013 FILED ON BEHALF OF THE DEFENDANTS EXHIBIT P14. THE TRUE COPY OF THE ORDER

DATED2911.2014 IN I.A.NO.2387/2013 IN O.S.NO.45/2012 OF THE ADDL. MUNSIFF COURT,KOLLAM. RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R1(1) TRUE COPY OF INJUNCTION ORDER

IN IA NO.304/2012 OP(C).No. 2966 of 2014 (O) --------------------------- EXT.R1(2) TRUE COPY OF GENTLEMAN AGREEMENT BETWEEN THE PETITIONER AND THE RESPONDENTS1AND2EXT.R1(3) LETTER OF BISHOP OF KOLLAM DATED612.2012 TO THE PETITIONER TO SELL CHURCH LAND ONLY TO2D RESPONDENT EXT.R1(4) TRUE COPY OF DOCUMENT FROM REVENUE DEPARTMENT DATED2201.2013 SHOWS THAT THE PETITIONER IS NOT THE OWNER OF B SCHEDULE PATH WAY OF RESPONDENTS1AND2EXT.R1(5) TRUE COPY OF PROSECUTION IA NO.4784/2012 FILED BY RESPONDENTS1AND2AGAINST THE PETITIONER HEREIN EXT.R1(6) TRTUE COP OF IA NO.3322/2013 FILED BY RESPONDENTS1AND2FOR THE ENFORCEMENT OF INJUNCTION ORDER

EXT.R1(7)TRUE COPY OF THE STAY ORDER

IN OP(C) NO.2966/2014 EXT.R1(8)TRUE COPY OF COMPLAINT OF1T RESPONDENT DATED1312.2014 AGAINST THE PETITIONER HEREIN TO HIGHER AUTHORITIES REGARDING ILLEGAL CONSTRUCTIONS IN VIOLATION OF INJUNCTION ORDER

AFTER OBTAINING STAY ORER WITH POSTAL RECEIPTS AND A/DS. EXT.R1(9) 13 COLOUR PRINTS (PHOTOS) SHOWING ILLEGAL CONSTRUCTIONS OF THE PETITIONER DATED1712.2014 AND2612.2014 EXT.R1(10) TRUE COPY OF OBJECTION OF THE PLAINTIFFS DATED182.2013 TO THE4H COMMISSION REPORT EXT.R1(11) TRUE COPY OF THE ALLEGED5H COMMISSION REPORT DATED162.2013 EXT.R1(12) TRUE COPY OF OBJECTION OF PLAINTIFFS DATED1507.2013 TO THE ALLEGED5H COMMISSION REPORT EXT.R1(13) TRUE COPY OFJUDGMENT

IN WP(C) 7172/2013 ABOUT THE ILLEGAL DISMANTLING OF ELECTRIC LINE AGAINST THE PETITIONER EXT.R1(14) TRUE COPY OF THE ORDER

OF ELECTRICITY OMBUDSMAN ABOUT THE ILLEGAL DISMANTLING OF ELECTRIC LINE BY VIOLATING THE INJUNCTION ORDER

BY THE PETITIONER HEREIN EXT.R1(15) TRUE COPY OF ADVANCE PETITION IA NO.4501/2013 FOR DISPOSING THE COMMISSION APPLICATION IA NO.2387/2013 EXT.R1(16) TRUE COPY OF ARGUMENT NOTE FOR IA NO.2387/2013 EXT.R1(17) TRUE COPY OF IA NO.1613/2013 FIOLED BEFORE VACATION COURT TO DISPOSE THE COMMISSION APPLICATION IA NO.2387/2013 EXT.R1(18) TRUE COPY OF PETITION DATED61.2014 FOR ISSUING ORDER

IN IA NO.1613/2013 BEFORE ISSUING ORDER

IN COMMISSION APPLICATION IA NO.2387/2013 EXT.R1(19) TRUE COPY OF COMPLAINT OF PLAINTIFF DATED2412.2013 AGAINST COURT STAFF WHO MANIPULATED DOCUMENTS OP(C).No. 2966 of 2014 (O) --------------------------- EXT.R1(20) TRUE COPY OF ARGUMENT NOTE FOR TPOP462014 FILED BEFORE THE DISTRICT COURT DATED54.2014 EXT.R1(21) TRUE COPY OF UNNUMBERED CMA DATED275.2014 FILED BEFORE THE DISTRICT COURTAGAINST AN ORDER

OF MUNSIFF COURT REGARDING THE NON- DISPOSAL OF COMMISSION APPLICATION IA NO.2387/2013 EXT.R1(22) TRUE COPY OF ORDER

DATED37.2014 IN UNNUMBERED CMA EXT.R1(23) TRUE COPY OF THE LETTER OF2D PLAINTIFF TO GRAMA PANCHAYATH REGARDING THE ISSUE OF BUILDING PERMIT TO THE PETITIONER HEREIN EXT.R1(24) TRUE COPY OF GRAMA PANCHAYAT DATED8.2.2013 INDICATING NO BUILDING PERMIT DUE TO DEFECT IN THE APPLICATION OF THE DEFENDANTS EXT.R1(25) TRUE COPY OF THE REPLY OF THE SAME GRAMA PANCHAYAT DATED35.2013 TO THE1T PLAINTIFF GIVES A CONTRADICTORY STATEMENT STATING NO PERMIT GIVEN AND THE PRESENT CONSTRUCTION IS WITHOUT BUILDING PERMIT EXT.R1(26) TRUE COPY OF THE DISTRICT TOWN PLANNING OFFICE DATED164.2014 TO THE1T PLAINTIFF INDICATES THAT NO OBJECTION CERTIFICATE, NO LAY OUT PERMISSION AND NO OTHER BUILDING PERMIT GIVEN TO THE DEFENDANTS EXT.R1(27) TRUE COPY OF JUDGMENT

IN WP(C) 14742/2013 DATED3009.2013 DIRECTING THE GRAMA PANCHAYATTO ISSUE BUILDING PERMIT TO THE DEFENDANTS ONLYAS PER LAW EXT.R1(28) TRUE COPY OF PETITION IA NO.5653/2014 DATED1712.2014 FOR CHANGING THE PRESENT COURTAPPOINTED COMMISSIONER FOR HER FAILURE TO SUBMIT COMMISSION REPORT ON1112.2014 AS DIRECTED BY THE TRIAL COURT OF KOLLAM EXT.R1(29) ORIGINAL THREE PHOTOS OF PLAINTIFFS DATED2212.2013 SHOWING THE DISPUTED SCHOOL GATE OPENED FOR NON PURPOSES EXT.R1(30) TRUE COPY OF THE FRAUDULENT COUNTER AFFIDAVIT DATED227.2013 BY THE PETITIONER HEREIN IN WP(C) 4742/2013 FOR THE CONSTRUCTION OF A STORE ROOM NOW TURNED INTO THE PRESENT3STORIED BUILDING IN PLAINT SCHEDULE PROPERTY IN VIOLATION OF INJUNCTION ORDER

//TRUE COPY// A.HARIPRASAD, J.

-------------------------------------- O.P.(C) No.2966 of 2014 -------------------------------------- Dated this the 30th day of January, 2015 JUDGMENT

This original petition under Article 227 of the Constitution of India is coming up by challenging Ext.P14 order passed by the learned Additional Munsiff, Kollam on I.A.No.2387 of 2013 in O.S.No.45 of 2012. It is a suit for injunction filed by respondents 1 and 2 in this proceedings claiming a right of easement by prescription.

2. Heard the learned counsel for the petitioner and the 1st respondent, who appeared as party in person.

3. Learned counsel for the petitioner submitted that the court below allowed Ext.P12 application disregarding the principle of law that an application for issuance of another commission shall not be allowed without setting aside plan and report submitted by the previous commissioner. In answer to this argument, 1st respondent submitted that the petitioner has also applied for a fresh commission and that was allowed without setting aside the earlier commission report and plan. The above rule is subject to certain exception, like non-availability of previous commissioner, urgency in conducting inspection, etc. Whatever be the issue in that regard, it can only be mentioned here that the legal worth of the commissioner's report OP(C)No.2966/2014 2 and plan now sought to be produced can be decided by the court below at the time of trial. It is axiomatic that the commissioner's report is only a piece of evidence. The grievance of the 1st respondent is that he is landlocked in spite of a temporary injunction order in his favour because the petitioner is violating the order. That is not a matter to be adjudicated in this proceedings. 1st respondent, if aggrieved, can initiate appropriate proceedings before the trial court.

4. Learned counsel for the petitioner drew my attention to Ext.P12 application wherein the 1st respondent has requested for an order so that the commissioner shall conduct a local inspection and report about nine things enlisted in the application. Out of the matters enlisted, item Nos.1 to 3 and 5 are totally extraneous to the litigation is the submission of the learned counsel for the petitioner. It is also submitted by the learned counsel for the petitioner that other things now sought to be reported by the commissioner have already been covered by the earlier reports and plans. This submission is opposed by the 1st respondent. According to him, subsequent to the earlier inspection, the situation has been changed by the petitioner. It is made clear that the trial court is free to decide about the acceptability of commissioner's report and plan obtained without setting aside the earlier reports and plans. I am of the view that enlisted items 1 to 3 and 5 are irrelevant for the suit and the order passed by the trial court OP(C)No.2966/2014 3 can be confined in respect of item Nos. 4, 6, 7 and 8. In respect of item No. 9 also, the submission of the learned counsel for the petitioner is that all these matters have already been covered. If the parties are able to point out before the commissioner any matter relating the proper adjudication of the suit, the commissioner is free to report about the state of affairs provided they are not covered in the earlier report. I am of the view that the only way to resolve the matter is to expedite trial of the suit. It is submitted by the petitioner that the suit is almost ripe for trial. But the 1st respondent wants to amend the plaint. Considering the entire matters, I am of the view that the lower court shall dispose of the suit as expeditiously as possible, at any rate, within a period of one year. The original petition disposed with the above observations. No order as to costs. A. HARIPRASAD, JUDGE. cks OP(C)No.2966/2014 4