High Court Kerala High Court

P.R.Sreedevi vs Smt.Suseela Alias Suleelamma on 30 September, 2010

Kerala High Court
P.R.Sreedevi vs Smt.Suseela Alias Suleelamma on 30 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C).No. 118 of 2010(O)


1. P.R.SREEDEVI, W/O.GANGADHARAN NAIR,
                      ...  Petitioner
2. GANGADHARAN, S/O.KRISHNAN NAIR,

                        Vs



1. SMT.SUSEELA ALIAS SULEELAMMA,
                       ...       Respondent

                For Petitioner  :DR.V.N.SANKARJEE

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :30/09/2010

 O R D E R
                  THOMAS P JOSEPH, J.

                 ----------------------------------------

                     O.P(C).No.118 of 2010

                  ---------------------------------------

            Dated this 30th day of September, 2010

                            JUDGMENT

This original petition is in challenge of Ext.P13, order

refusing to set aside reports and plans submitted by the Advocate

Commissioner and consequent dismissal of Ext.P11, application.

Petitioners filed O.S.No.370 of 2001 in the court of learned

Additional Munsiff, Cherthala for a decree for prohibitory

injunction to restrain respondents from trespassing into the

property described in that suit. Respondents in response filed

O.S.No.475 of 2010 in the same court seeking a declaration of

right and for prohibitory injunction. There is an order to try the

suits jointly. In both the suits, respective plaintiffs filed

applications to appoint Surveyor and Commissioner to identify

the properties and court appointed an Advocate Commissioner to

inspect the properties with the assistance of Taluk Surveyor.

Later, learned Munsiff removed the Taluk Surveyor and

appointed a retired Surveyor to assist the Advocate

Commissioner. After identification of properties by measurement

as the Advocate Commissioner would say, Exts.P8 and P10

reports along with plans are produced by the Advocate

O.P(C).No.118 of 2010
: 2 :

Commissioner. Then came Ext.P11, application by petitioner to

set aside those reports and plans. Various allegations are made

in Ext.P11, application including that the Advocate Commissioner

has purposely helped the respondents who filed O.S.No.475 of

2001. Yet another objection is that there is no proper

identification of the property and that even the plans submitted

by Advocate Commissioner do not tally. Learned Munsiff found

against the contentions and Ext.P11, application was dismissed

by Ext.P13, order. Learned counsel asserts that Exts.P8 and P10,

reports and plans are liable to be set aside or remitted to the

Advocate Commissioner for fresh identification. Learned counsel

has asserted the allegations in Ext.P11, application before me.

2. I have gone through the records and Ext.P13, order.

It is seen that learned Munsiff has referred to each objection

raised by petitioners and found that the objections are not

tenable. There is reference to identification of properties as

claimed by the parties with reference to the documents of title.

One objection raised was that property belonging to one

Makayiran Sasi (who is not a party to the proceeding) was not

ascertained. But the Advocate Commissioner reported that

relevant documents were not furnished by the petitioners though,

O.P(C).No.118 of 2010
: 3 :

petitioners have a contention that it was actually applied.

Learned Munsiff has observed that at any rate those documents

are not produced in court (either along with Ext.P11 or before

that). Learned Munsiff has also observed that petitioners have

not examined the Advocate Commissioner or Surveyor in support

of their contentions, the reports and plans are not accepted.

Learned counsel states that the witness schedule was filed in the

court but, that was not taken into account by the learned Munsiff.

3. As I stated at the beginning, petitioners wanted a

decree for prohibitory injunction in respect of the property

scheduled in O.S.No.370 of 2001 obviously on the premise that

they are in possession of the said property. In suits for injunction

based on possession, detailed enquiry regarding title is not

required and in cases involving complicated issues of title parties

are to be relegated to a comprehensive suit on title. Petitioners

have not sought any declaration of title or other relief based on

title. They only sought a decree for prohibitory injunction based

on their possession. Report of the Advocate Commissioner is

only an item of evidence. It is open to the petitioners to adduce

evidence regarding possession of property as they claim in

O.S.No.370 of 2001. So far as O.S.No.475 of 2001 is concerned,

O.P(C).No.118 of 2010
: 4 :

respondents who filed the suit have not come up with any

contention that Exts.P8 and P10, reports and plans are not

acceptable. Petitioners as defendants are resisting O.S.No.475 of

2001. In that case also there is no counter claim made by

petitioners based on title claimed by them. In that situation, it is

for the respondents who have filed O.S.No.475 of 2001 to show

with acceptable plan that property described in O.S.No.475 of

2001 is properly identified and that they have title over the said

property as per documents of title. If there is any infirmity in the

reports and plans in that regard it will only come to the

disadvantage of respondents who filed O.S.No.475 of 2001. This

court has also held in Sarojini Vs. Karthiyani Amma (2010(1)

KLT SN 17 Case No.19) that interference with the reports and

plans submitted by the Advocate Commissioner under Article 227

of the Constitution is warranted only if it is shown that any order

passed by the trial court as to whether the report has to be set

aside or remitted suffered from such infirmity which if not

corrected will result in grave injustice. I stated that so far as

petitioners are concerned, their suit is only for decree for

injunction based on possession which they can prove by

appropriate evidence and that the infirmity in the report and plan

O.P(C).No.118 of 2010
: 5 :

if any so far as property in O.S.No.475 of 2010 is concerned does

not come into disadvantage of petitioners. It is open to the

petitioners to examine the Advocate Commissioner and Surveyor

at the time of trial and show that respondents are not entitled to

the declaration prayed for in O.S.No.475 of 2010. In that

situation I am not persuaded to think that there is any infirmity in

the report and plan which is required to be interfered at this

stage.

Original petition is dismissed.

(THOMAS P JOSEPH, JUDGE)
Sbna/-