IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 4220 of 2007(B)
1. KURIAN, S/. CHERU,
... Petitioner
Vs
1. ANNAMMA,
... Respondent
2. BABY JOSE, S/O. CHERAPPAN -DO-.
3. JOSEPH BHUKANPUR,
4. LILLY, W/O. CHAKKOCHAN,
5. AMMINI, D/O. CHERAPPAN,
6. ROSY, -DO- -DO-.
7. LEELAMA -DO- -DO-.
8. OMANA -DO- -DO-.
For Petitioner :SRI.K.A.SREEJITH
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :09/02/2007
O R D E R
K.P.BALACHANDRAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C)NO.4220 OF 2007
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 9th day of February 2007
JUDGMENT
The grievance of the petitioner who is the second plaintiff
in O.S.140/92 on the file of 2nd Additional Sub Court, Thrissur is
that the Commissioner has measured the property and fixed the
boundaries and shown the property of petitioner in yellow colour
and property of the defendant in green colour fixing the
boundaries thereof as well but that the ascertainment of
boundary was in an unscientific manner as the Commissioner
has not determined the northern boundary of the scheduled
property in the sequence in which of the property was sold by
Mariyakkutty, the predecessor in interest of the petitioner and
the respondents. It is submitted that a measurement in the
sequence in which the properties were sold by Mariyakkutty is
absolutely necessary for settling the dispute between the
plaintiff and the defendants and that Ext.P4 order disallowing
such a request deserves to be quashed.
2. It is worthy to note that the case is one wherein as
observed by the Trial Court the first Commissioner surrendered
W.P.(C)NO.4220 OF 2007
2
the commission warrant for non co-operation of parties.
Thereafter Adv.K.S.Praveen was appointed as Commissioner. He
filed a commission report but the report was remitted for further
ascertainment of certain matters. Thereafter Adv. Raphy Joseph
was appointed as Commissioner and then Adv.Beena Menon was
appointed and they all expressed their inability to execute the
commission warrant as the parties are not co-operating for the
execution of the warrant. It is finally that Adv.N.D.Joy was
appointed as Commissioner who with the assistance of Taluk
Surveyor of Thrissur Taluk executed the order and filed
commission report demarcating the properties and fixing the
boundaries. The Trial Court has observed that the said
Commissioner is a Civil Engineer and he was executing the order
with the assistance of the Taluk Surveyor measuring the
property and that however Commissioner’s report is only a piece
of evidence and prima facie there is no procedural irregularity or
inherent defect in the report warranting Commission report to
be remitted to the Commissioner. The Trial Court further
observed that the court will have to consider the report along
W.P.(C)NO.4220 OF 2007
3
with the other evidence at the final disposal of the suit taking
into account the entire evidence in the case.
3. Assailing the order of the Sub Judge what is urged by
counsel for the petitioner is that the property originally belonged
to Mariyakutty, the predecessor in interest of the plaintiff and
defendants under Ext.A1 document of 1107 M.E. that she
executed document no.14/1121 M.E. in favour of Kunjilakutty in
the first instance; that thereafter she executed deed no.1606 of
1121 M.E. to Kochumariya and another document in favour of
the defendant Annamma who are all daughters in law of
Mariyakkutty; that what Kochumariya obtained under deed
No.1606/1121 M.E. has been transferred to her son, the second
plaintiff under deed no.103/1985 and that to ascertain the
boundaries the properties transferred by Mariyakkutty in the
chronological order has to be measured out and demarcated.
The request cannot be entertained as Kunjilakkutty who is a
transferee under deed no.14 of 1121 M.E. and Mariyakkutty’s
legal representatives are not parties to the suit. What the
petitioner/second plaintiff can take under deed no.103 of 1985
W.P.(C)NO.4220 OF 2007
4
executed by her mother Kochumariya is only that portion of the
property which was in her possession pursuant to execution of
document no.1606/1121 M.E. in her favour by Mariyakkutty.
The petitioner cannot aspire to have recovery of possession of
any portion of land in possession of strangers under cover of
demarcating property and putting up of boundary. Hence, the
request to have the properties measured in the order in which
Mariyakkutty executed documents to Kunjilakkutty,
Kochumariya and the first defendant Annamma is untenable. I
also find that the request so advanced is ill conceived. The
dismissal of I.A.7094/06 vide Ext.P4 order is hence upheld.
This writ petition in the circumstances is devoid of merit
and is dismissed.
K.P.BALACHANDRAN, JUDGE
jes