P.M. Ayisakunhi vs P.K. Ayisumma on 7 January, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 30598 of 2008(P)


1. P.M. AYISAKUNHI, W/O.ABDUL SALAM,
                      ...  Petitioner
2. HAJIRA, D/O.P.M. AYISAKUNHI,
3. SERBA, D/O. P.M. AYISAKUNHI,
4. SIBATH, S/O.P.M. AYISAKUNHI,

                        Vs



1. P.K. AYISUMMA,
                       ...       Respondent

2. P.K. NABEESA, D/O. ABDUL SALAM,

3. P.K. SALI, S/O. ABDUL SALAM,

                For Petitioner  :SRI.A.MOHAMED MUSTAQUE

                For Respondent  :SRI.R.SURENDRAN

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :07/01/2010

 O R D E R
              S.S.SATHEESACHANDRAN, J.
                  -------------------------------
             W.P.(C).NO.30598 OF 2008 (P)
                -----------------------------------
         Dated this the 7th day of January, 2010

                      J U D G M E N T

The writ petition is filed seeking mainly the following

reliefs:

i. to issue a certiorari or such other writ
quashing Ext.P10

ii. to issue a writ of mandamus or such
other writ or order directing the Munsiff
Court of Thalassery to allow Ext.P9
application.

2. Petitioners are plaintiffs 1, 2, 4 and 5 in O.S.No.344 of

1991 on the file of the Munsiff Court, Thalassery and the

respondents are the defendants. Suit was one for fixation of

boundary and also for injunction, and it was decreed in favour

of the petitioners/plaintiffs. Admittedly, the plaintiffs’

property has a common boundary with the defendants on its

WPC.30598/08 2

southern side. The demarcating line separating the properties

was identified on the trial side by deputing an Advocate

Commissioner and the report and plan prepared by the

Commissioner being accepted by the court, decree was passed

stating that C2 plan shall form part of the decree. C2 plan

graphically delineates the boundary separating the two

properties, that of the plaintiffs and the defendants. On that

boundary line, admittedly, a well is also situated. After

passing of the decree, the petitioners/plaintiffs filed the

execution petition in which they sought for fixation of the

boundary as made under C2 plan, determining the plaint

property, and its identification on all four sides as spelt out in

the plaint. An Amin was deputed by the court on the request

made in the execution petition for fixing the boundary of the

decree schedule property. Fixation made by the Amin was

objected to by the judgment debtor, filing a writ petition

before this Court. This Court vide Ext.P5 judgment found that

the Amin was incompetent to carry out the functions of fixing

the boundary and the court below was directed to depute an

Advocate Commissioner for the purpose, and if possible, by

WPC.30598/08 3

the same commissioner, who had been appointed on the trial

side and who prepared C2 plan. Pursuant to such directions,

the very same Commissioner was deputed, who after

conducting local inspection and carrying out the

measurements filed a report and plan with the assistance of a

Taluk Surveyor. In the report and also plan, the

Commissioner gave details of some changes, which had

occurred in the property after his last visit stating that in the

second visit, it was noticed that a road was passing through

the northern side of the plaintiffs property. He also expressed

some views that portion of the property and also another

portion in the northern western corner were not under the

possession of the plaintiffs. Though the petitioners/plaintiffs

have filed objections to the report and plan prepared by the

Advocate Commissioner, the learned Munsiff after hearing

both sides, accepted the report and plan vide Ext.P10 order.

Propriety and correctness of that order is challenged in the

writ petition invoking the supervisory jurisdiction vested with

this Court under Article 227 of the Constitution of India.

WPC.30598/08 4

3. I heard the counsel on both sides. The decree which

was passed in the suit was only for fixation of boundary and

also for injunction. Fixation of boundary sought for by the

plaintiffs/decree holders had already been done on the trial

side itself with the decree granted accepting Ext.C2 plan. In

fact, nothing more with respect to fixation of boundary arose

for consideration in execution. Deputing of the Amin or

Advocate Commissioner again for fixation of the boundary, in

the given facts of the case, was not at all necessary. The

decree passed is binding on both sides. If at all there is any

interference with the plaint property despite the order of

injunction passed by the defendants or judgment debtors, it is

open to the decree holders/plaintiffs to take appropriate steps

as provided by law. So far as the views expressed by the

Advocate Commissioner and also by the court in Ext.P10 order

with respect to the decree holder not being in possession the

entire property in view of the features evidencing the

existence of a road etc. I find such conclusion that the plaintiff

is out of possession was uncalled for when there was nothing

more to be executed under the decree in the present

WPC.30598/08 5

proceedings. Observations made by the court under Ext.P10

order, I make it clear will not cause any prejudice to the

plaintiffs in seeking appropriate reliefs as provided by law.

Any further continuance of the execution proceedings will be

only an exercise in futility and the court below is directed to

close the proceedings taking note of the observations made by

this Court as above. Subject to the above observations, the

writ petition is closed.

S.S.SATHEESACHANDRAN
JUDGE

prp