High Court Kerala High Court

Sheikh Musthafa vs Sivaswamy on 11 July, 2007

Kerala High Court
Sheikh Musthafa vs Sivaswamy on 11 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 7096 of 2004(T)


1. SHEIKH MUSTHAFA, ATHAYAMPATHY,
                      ...  Petitioner

                        Vs



1. SIVASWAMY, KALLIYANKARAYAR,
                       ...       Respondent

2. RUGMINI W/O. KALLIYANGARAYARA,

3. KALLIYAMMAL W/O. ARUMUGHA KOUNDER,

4. PAZHANIMALA S/O. KUTTU,

                For Petitioner  :SRI.P.R.VENKETESH

                For Respondent  :SRI.SAJAN VARGHEESE K.

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :11/07/2007

 O R D E R
                          PIUS C. KURIAKOSE, J.
                           -------------------------------
                   W.P.(C) Nos. 7096 and 19435 OF 2004
                         -----------------------------------
                    Dated this the 11th day of July, 2007

                                  JUDGMENT

Sri.K. SajanVarghese, learned counsel for the respondent submits

that the suit itself presently stands dismissed and to his information, till

this moment, no application for restoration of suit has been filed. If what

the learned counsel submits is correct, then both the writ petition will

stand dismissed as infructuous.

Subject to the varification of the above aspect of the matter by the

court below, I propose to consider the correctness of Ext.P4 in WP(C)

7096 of 2004 and also that of Exts.P3 and P4 in WP(C) 19435 of 2004

which are in fact orders passed by way of consequence of Ext.P4 in WP

(C) 7096 of 2004. Ext.P4 is an order by which the court below has

dismissed an application for appointment of a fresh commission for

identification of the petitioner’s property on the basis of title deeds and

village records and to prepare a survey plan. On considering that

application, the court appointed a commissioner who filed an interim

report which was to the effect that the disputed property i.e., plaint item

No.5 cannot be measured on the basis of the title document and village

records. To that report no objections were filed by the defendants.

Plaintiff filed objections. Under the impugned order, the learned Munsiff

WPC Nos. 7096 & 19435
0f 2004
2

has found inter alia that the petitioner has not taken any steps for

substantiating his objections to the interim report by cross examining the

commissioner or the surveyor so that the court could be convinced that

the property can still be properly identified and measured on the basis of

the available records. It is merely on that reason that the court became

obliged to accept the interim report and closed the commission

application itself without granting the request of the petitioner.

2. Having regard to the nature of suit and the nature of the

contentions raised therein, I am of the view that the petitioner who is the

plaintiff is to be afforded an opportunity for substantiating the objections

which he had filed to the interim report of the Commissioner by cross

examining the Commissioner and by examining the Surveyor. Even as I

do not find any infirmity in the view taken by the learned Munsiff, I direct

the learned Munsiff to permit the petitioner as the suit goes for trial to

cross examine the advocate commissioner and to examine the Surveyor

on the basis of the objections filed by him to the interim report. Once

the petitioner adduces whatever evidence he may be able to adduce to

substantiate his contention that the property is even now identifiable and

once the entire evidence in the suit come on record, the court will hear

the parties on the question whether the report should be remitted to the

WPC Nos. 7096 & 19435
0f 2004
3

commissioner. The approval granted by this court to the impugned order

will not stand in the way of the court in taking a decision on that

question. Decision will be taken by the court on that question before

final judgment is delivered in the suit. In view of the decision taken by

me in WP(C) 7096/04, it is not necessary that the correctness of Ext.P4

and P3 impugned in WP(C) 19435/04 is examined since both those

orders have been issued as orders consequential to Ext.P4 in WP(C)

7096/04.

The petitioner will get the benefit of the directions herein only if he

has filed an application for restoration of the suit at least as on today. If

any such application is pending, the court will favourably consider that

application and thereafter ensure compliance with the directions in my

judgments.

PIUS C. KURIAKOSE, JUDGE
btt

WPC Nos. 7096 & 19435
0f 2004
4