Kerala High Court
Vilasinaiamma vs Saraladevi
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
MONDAY, THE 8TH DAY OF OCTOBER 2012/16TH ASWINA 1934
OP(C).No. 239 of 2010 (O)
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OS.504/2007 of II ADDL.MUNSIFF COURT, ERNAKULAM
PETITIONER(S)/PETITIONERS:
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1. VILASINAIAMMA, D/O. MEENAKSHYAMMA,
AGED 83 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
2. MALATHYAMMA, D/O. MEENAKSHYAMMA,
AGED 80 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
3. SARASWATHYAMMA, D/O. MEENAKSHYAMMA,
AGED 78 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
4. AMBUJAMMA, D/O. MEENAKSHYAMMA,
AGED 70 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
5. RADHAKRISHAN, S/O. AMMINIAMMA,
AGED 63 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
6. REMANI AMMA, D/O. AMMINIAMMA,
AGED 61 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
7. RAJESWARI AMMA, D/O. AMMINIAMMA,
AGED 57 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYYANNUR TALUK.
8. JAYAKUMAR, S/O. AMMINIAMMA,
AGED 55 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
9. K.GOPINATHAN, S/O. LATE LEELAMMA,
61 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
10. K.SIVAKUMAR, S/O. LATE LEELAMMA
56 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
O.P.(C) No.239 of 2010
: 2 :
11. K.SATHI DEVI, D/O. LATE LEELAMMA,
56 YEARS, KADEKUZHI HOUSE, MARADU.P.O.
MARADU VILLAGE, KANAYANNUR TALUK.
BY ADVS.SRI.P.B.KRISHNAN
SRI.M.P.RAMNATH
RESPONDENT(S):
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SARALADEVI, D/O. DEVAKI AMMA,
AGED 57 YEARS, KADEKUZHI HOUSE, SURABHI
MARADU.P.O., MARADU VILLAGE, KANAYANNUR TALUK - 682 304
RR BY ADV. SRI.P.M.SAJI
RR BY ADV. SRI.SAJU.S.POONTHODATH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08-10-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO.239 of 2010
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1 : TRUE COPY OF THE PLAINT IN O.S.NO.504/2007 BEFORE THE
HON'BLE MUNSIFF COURT, ERNAKULAM.
EXHIBIT P2 : TRUE PHOTOSTAT COPY OF THE ADVOCATE COMMISSIONERS
REPORT WITH SKETCH DATED 24.5.2007 IN I.A.NO.3621/2007
IN O.S.NO.504/2007 BEFORE THE 2ND ADDITIONAL MUNSIFF
COURT, ERNAKULAM.
EXHIBIT P3 : TRUE COPY OF THE SURVEY COMMISSION APPLICATION
I.A.NO.5766/2007 FILED BY THE PETITIONERS/PLAINTIFF.
EXHIBIT P4 : TRUE PHOTOCOPY OF THE COUNTER/OBJECTIONS FILED BY
THE RESPONDENT IN I.A.NO.5766/2007
EXHIBIT P5 : TRUE PHOTOCOPY OF JUDGMENT DATED 30.1.2010 IN
CMA.117/2007 OF THE HON'BLE DISTRICT COURT,
ERNAKULAM.
EXHIBIT P6 : TRUE PHOTOCOPY OF THE ORDER DATED 22.7.2010 N
I.A.NO.5766/2007 IN O.S.504/2007 OF THE HON'BLE II
ADDITIONAL MUNSIFF'S COURT, ERNAKULAM.
EXHIBIT P7 : TRUE PHOTOCOPY OF PAGE NO.29 OF THE CERTIFIED COPY OF
DOCUMENT NO.2253/1970 SRO TRIPUNITHURA SHOWING
PLAINT A SCHEDULE PROPERTY.
EXHIBIT P8 : TRUE PHOTOCOPY OF PAGE NO.12 AND PAGE NO.42 OF THE
CERTIFIED COPY OF PARTITION DEED NO.2183/1967 SRO
TRIPUNITHURA WHERE UNDER THE RESPONDENT GETS HER
PROPERTY, ALONG WITH ITS READABLE TRANSCRIPT.
EXHIBIT P9 : TRUE PHOTOCOPY OF PAGE 11 OF THE CERTIFIED COPY OF
PARTITION DEED NO.497/1970, WHICH IS THE FURTHER
PARTITION OF PROPERTIES COVERED IN EXT.P8 WITHIN THE
BRANCH OF THE RESPONDENT.
EXHIBIT P10 : TRUE PHOTOCOPY OF THE SURVEY SKETCH IN RESPECT OF
FIELD NO.326 OF MARADU VILLAGE ISSUED BY THE
SUPERINTENDENT OF SURVEY & LAND RECORDS, ERNAKULAM.
EXHIBIT P11 : TRUE PHTOCOPY OF THE SKETCH OF PROPERTIES GENERATED
BY AUTOCAD TECHNIQUE OF PLAINT A SCHEDULE 63 CENTS IN
SURVEY NO.326/2 OF MARADU VILLAGE.
RESPONDENT(S) EXHIBITS
NIL.
//TRUE COPY//
P.S. TO JUDGE.
V.CHITAMBARESH, J.
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O.P.(C) No. 239 of 2010
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Dated this the 8th day of October, 2012
J U D G M E N T
The suit as originally filed was one for fixation of boundary of the plaint A and B Schedule property in its entirety. There was also a prayer for a decree of permanent prohibitory injunction restraining the defendants from interfering with the plaintiffs constructing the compound wall. The suit was pending as O.S.No.504/2007 on the file of the court of the II Additional Munsiff of Ernakulam. An Advocate Commissioner was deputed in the suit who had filed a report with a rough sketch.
2. The plaint was later amended confining the relief to fixation of southern boundary of the plaint A schedule property alone. A relief of declaration of title in regard to the plaint B schedule property was also sought by way of amendment. The plaint B schedule property formed part of the plaint A schedule property and denoted the portion remaining after alienations.
3. The plaint after amendment has been re-presented to the court of the Subordinate Judge of Ernakulam (numbered as O.P.(C) No.239 of 2010 2 O.S.No.48 of 2011). The petitioners/plaintiffs had earlier filed an application to depute another Advocate Commissioner to file a revised report with the assistance of a Taluk Surveyor. The court below has by the order impugned dismissed the application for appointment of another commissioner.
4. It is trite law that a second Advocate Commissioner cannot be appointed without setting aside the report and plan of the first Advocate Commissioner. Therefore the order of the court below refusing to appoint an Advocate Commissioner for the second time cannot be faulted with. But then the very same plaint has been re-presented to the court of the Subordinate Judge of Ernakulam after amendment. Therefore the report and plan of the Advocate Commissioner can very well be remitted to the same Advocate Commissioner.
5. A report and plan of the Advocate Commissioner with the assistance of a Taluk Surveyor will be desirable in the nature of the controversy. This is particularly so since the issue pertains to fixation of boundary which involves identification with reference to the documents of title. I permit the O.P.(C) No.239 of 2010 3 petitioners to file yet another application in O.S.No.48 of 2011 to have the report and plan of the Advocate Commissioner remitted. The court below on receipt of such an application shall deal with it expeditiously and untrammelled by the observations contained in the order impugned.
No further directions are called for and the original petition is disposed of.
V.CHITAMBARESH, Judge.
nj.