K. Madhavan Nair vs Murayothummal Raman on 13 October, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 27564 of 2003(F)


1. K. MADHAVAN NAIR, S/O. KUNHIRAMAN
                      ...  Petitioner

                        Vs



1. MURAYOTHUMMAL RAMAN,
                       ...       Respondent

2. KALAM KOTTAKKAL SASI, S/O. GOPALAN.

3. KALAM KOTTAKKAL KANDAN,

4. KALAM KOTTAKKAL KALAM, S/O. RAMAN,

                For Petitioner  :SRI.T.SETHUMADHAVAN

                For Respondent  :SRI.MANJERI SUNDERRAJ

The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :13/10/2009

 O R D E R
                           P.Q. BARKATH ALI, J.
                   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                         W.P.(C) No. 27564 of 2003
                   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                 Dated this the 13th day of October, 2009

                                  JUDGMENT

This writ petition filed by the plaintiff in O.S.No. 321 of 1999 on the

file of the Munsiff’s Court-I, Kozhikode challenging Ext.P4 order

dismissing I.A.No.5136 of 2002.

2. The petitioner/plaintiff filed O.S.No.321 of 1999 before the

Munsiff’s Court-I, Kozhikode for a permanent injunction in respect of

6.20 acres of land obtained by him as per the final decree in O.S.No.16 of

1956 on the file of the Sub Court, Kozhikode. Along with the said suit a

commission was taken out for identifying the plaint schedule property. The

Commissioner filed his report Ext.P1 on 17-6-1999. The

respondents/defendants filed I.A. 2939 of 1999 to remit the report, which

was allowed by the lower court. The Commissioner visited the property on

September 21, 2002, on which date the petitioner/plaintiff was not able to

present due to some function in his house. The Commissioner without

completing the inspection submitted his report based on the documents

produced by the respondents/defendants. Thereafter, the petitioner/plaintiff

filed I.A. 5136 of 2002 for remitting the commission report. By Ext.P4

order the learned Munsiff dismissed that petition. The plaintiff challenges

the said order in this writ petition.

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3. Heard the counsel for the petitioner. Though several adjournments

were granted, counsel for the respondent was absent.

4. It is seen from Ext.P2 and P2(a) Commissioner’s plan and report

dated October 3, 2002 that the Commissioner has prepared sketch on the

basis of the documents produced by the respondents/defendants. The

specific case of the petitioner is that it is not the plaint schedule property.

Considering the facts and circumstances of the case, I feel that the court

below should have remitted P2 and P2(a) to the same Commissioner to file

a fresh plan and report on the basis of the documents produced by the

petitioner/plaintiff.

4. Under these circumstances, I allow the writ petition. Ext.P4 order

of the Munsiff dismissing the I.A. No. 5136 of 2002 dated April 7, 2003 is

hereby set aside. The court below is directed to remit the Commissioner’s

report Exts.P2 and plan P2(a) to the very same Commissioner, calling for

fresh plan and report on the basis of the documents produced by the

petitioner/plaintiff.

                                         P.Q. BARKATH ALI, JUDGE


mn

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