High Court Kerala High Court

Abdul Rasheed vs Shaila Beegum on 17 October, 2008

Kerala High Court
Abdul Rasheed vs Shaila Beegum on 17 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 29621 of 2008(B)


1. ABDUL RASHEED,
                      ...  Petitioner

                        Vs



1. SHAILA BEEGUM, D/O. SALIKATHU BEEVI,
                       ...       Respondent

2. MUHAMMED SHAMNAD,

                For Petitioner  :SRI.P.V.KUNHIKRISHNAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :17/10/2008

 O R D E R
                       V. RAMKUMAR, J.
               * * * * * * * * * * * * * * * * * *
                  W.P. (C ) NO. 29621 of 2008
               * * * * * * * * * * * * * * * * * *
                      Dated: 17-10-2008

                           JUDGMENT

Petitioner who is the defendant in O.S. 211 of 2007

on the file of the Munsiff’s Court, Nedumangad filed I.A.

No. 572 of 2008 for the appointment of a Commission to

identify the counter claim schedule property. Ext.P3 is the

said application which has been dismissed as per Ext.P4

order dated 13-3-2008.

2. The aforementioned suit instituted by the

respondents herein is one for demarcation of the boundary

of the properties of both the plaintiffs and the defendants

and for constructing a boundary wall on the basis of Ext.C3

plan prepared by the Advocate Commissioner in an earlier

suit conducted between the same parties filed as O.S.

238 of 1996 before the same court. The petitioner herein

had filed a counter claim in the present suit and sought

for declaration of title and for fixing the boundary and also

for consequential injunction. According to the petitioner it

was to identify the counter claim schedule property that he

applied for issue of a commission and the court below erred

in not allowing the said prayer.

2. It is an admitted fact that in the earlier suit

W.P. (C ) NO. 29621 of 2008 -:2:-

between the same parties filed as O.S. 238 of 1996 Ext.C3

plan prepared by the Advocate Commissioner and it was on

the strength of that plan that the earlier suit was decreed

and even the boundary was fixed as per Ext.C3 plan. The

court below has observed that in Ext.C3 plan both the

properties have been clearly shown with separate

boundaries. It was for putting up the compound wall that

the present suit has been filed. Except contending that the

properties are different, the petitioner had not

substantiated the said contention which in the particular

facts and circumstances of the case cannot be upheld. The

court below was therefore right in rejecting the petition

filed by the petitioner for issue of a fresh commission and

plan.

The Writ Petition fails and it is accordingly dismissed.

Dated this the 17th day of October 2008.

Sd/-V. RAMKUMAR,

(JUDGE)

/true copy/

ani.