Kerala High Court
Kottarathil Mohanan vs Karunakaran Nair
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY,THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938
OP(C).No. 1314 of 2015 (O)
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OS.NO.128/2013 OF ADDITONAL MUNSIFFS COURT-II, KOZHIKODE
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PETITIONER(S):
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KOTTARATHIL MOHANAN, AGED 61 YEARS,
S/O.SANKARAN, MELEPERAZHAYIL HOUSE, ADIVARAM PO,
FAROOK COLLEGE, KOZHIKODE DISTRICT
BY ADVS.SRI.M.SASINDRAN
SRI.V.VENUGOPAL
RESPONDENT(S):
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1. KARUNAKARAN NAIR, AGED 58 YEARS,
S/O.KALLIANIKUTTY AMMA, MELEPERAZHIYIL HOUSE,
ADIVARAM PO - 673586, FAROOK COLLEGE,
VELIPRAM AMSOM, KARIMKALLAYI DESOM, KOZHIKODE TALUK,
DISTRICT.
2. KOTTARATHIL APPU, AGED 73 YEARS,
S/O.SANKARAN, MELEPERAZHIYIL HOUSE, ADIVARAM PO,
PIN-673586, FAROOK COLLEGE, VELIPRAM AMSOM,
KARIMKALLAYI DESOM, KOZHIKODE TALUK, DISTRICT.
3. KOTTARATHIL GANGADHARAN, AGED 51 YEARS,
S/O.SANKARAN, MELEPERAZHIYIL HOUSE, ADIVARAM PO,
PIN-673586, FAROOK COLLEGE, VELIPRAM AMSOM,
KARIMKALLAYI DESOM, KOZHIKODE TALUK, DISTRICT.
R1-R3 BY ADVS. SRI.V.V.SURENDRAN
SRI.P.A.HARISH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2016, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
OP(C).No. 1314 of 2015 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1: A TRUE COPY OF THE PLAINT IN OS.NO.128/2013
P2: A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS
P3: A TRUE COPY OF THE COMMISSIONER REPORT
P4: A TRUE COPY OF THE PLAN APPENDED TO THE EXT P3 COMMISSION
REPORT
P5: A TRUE COPY OF THE IA.NO.5306/2014 IN OS.NO.108/2013
P6: A TRUE COPY OF THE ORDER DATED 18.02.2015 IN IA.NO.5306/2014 IN
OS.NO.128/2013 ON THE FILES OF ADDITONAL MUNSIFFS COURT II,
KOZHIKODE
RESPONDENT(S)' EXHIBITS
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
K.HARILAL, J.
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O.P.(C). No.1314 of 2015
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Dated this the 13th day of June, 2016
JUDGMENT
~ ~ ~ ~ ~ The petitioner is the plaintiff in O.S.No.128/13 on the files of the II Additional Munsiff's Court, Kozhikode. The above suit was filed for an injunction restraining the defendants from obstructing or altering B schedule pathway. The respondents filed a written statement disputing the length and width of the said pathway and contended that the width of the pathway upto the plaint A schedule property is only having 5 Ft. The respondent filed an application along with the suit to appoint an Advocate Commissioner to ascertain the lie of the pathway and the Commissioner filed Ext.P3 report stating the lie of the pathway and Ext.P4 plan was also filed. Thereafter, the petitioner filed Ext.P5 application to remit back the commission report with a direction to the Commissioner to OP(C).1314/15 :2:
measure out the property of the first defendant based on the title, position and extent of the excess land possessed by him. The respondents filed objections contending that no purpose will be served by measuring the property when the suit is one for simple injunction restraining the respondents from widening the B schedule pathway. After considering the rival pleas, the learned Munsiff dismissed the said application by Ext.P6. The legality and propriety of Ext.P6 order are under challenge in this original petition.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
3. The suit is one for simple injunction restraining the respondents from widening B schedule pathway and the Commissioner had submitted a report with a plan stating the lie of B schedule pathway at the time of filing the suit. The present application is OP(C).1314/15 :3:
to remit back the report and plan to the Commissioner so as to measure out the extent of B schedule pathway.
4. Going by the impugned order it is seen that the width of the pathway is reported by the Commissioner in the earlier report, which is available on record. The plaintiff has not sought for restoration of the portion of the pathway which is said to have been encroached by the respondents. Even now, the scope and extent of the suit is confined to simple suit for injunction only. In short, he has omitted the prayer for mandatory injunction, if the respondents had encroached any portion of the pathway. In the above circumstance, there is no need to measure the width of the pathway again, particularly, when the particulars of the pathway are available in the report. In the above view, the court below is justified in dismissing the application seeking to remit the report to the Commissioner to measure out the property. There is OP(C).1314/15 :4:
no illegality or impropriety in the impugned order under challenge.
This original petition will stand dismissed.
Sd/-
K. HARILAL, JUDGE okb/14.6