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2022 Supreme(Online)(KER) 2044
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 1ST DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944 O.P.(C) NO.1679 OF 2022 AGAINST THE ORDER DATED 01.08.2022 IN I.A.NO.7/2022 & 8/2022 IN O.S.NO.157/2009 ON THE FILE OF THE SUB COURT, PERUMBAVOOR.
PETITIONERS/PETITIONERS IN IAs/PLAINTIFFS 4, 5 AND 6 IN O.S.:
1 CLEETUS, AGED 60 YEARS, S/O AUSEPH, KOYIKKARA HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN-683562.
2 KOCHUTHRESSIA, AGED 55 YEARS, W/O LATE JOSE, KOYIKKARA HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN-683562.
3 TRAICY, AGED 25 YEARS, D/O LATE JOSE, KOYIKKARA HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN-683562.
BY ADV JOSE J.MATHAIKAL RESPONDENTS/RESPONDENTS IN Ias/DEFENDANTS 4 TO 26 IN THE O.S.:
1 CICILY, AGED 60 YEARS, W/O AUGUSTHY, THEKKANATTU HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN - 683562
2 RENNY, AGED 35 YEARS, D/O AUGUSTHY, THEKKANATTU HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN – 683562.
3 PAULOSE, AGED 70 YEARS, S/O ULAHANNAN, THURUTHUMMEL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN – 683562.
4 ELAMMA, AGED 70 YEARS, W/O DEVASSIA THOMA, KACHAPPILLY HOUSE, THAMARACHALKARA, KIZHAKKAMBALAM, PIN-683562.
5 ELIKKUTTY, AGED 70 YEARS, W/O DEVASSIA ANTONY, KACHAPPILLY HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN – 683562.
6 RAJAPPAN, AGED 60 YEARS, S/O NARAYANANA, PULICKAL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN - 683562
7 E.V VARGHESE, AGED 80 YEARS, ETHAKKAN HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN – 683562.
8 BENNY, AGED 50 YEARS, S/O MATHEW, PALATHINKAL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN – 683562.
9 BABU, AGED 55 YEARS, S/O JAMES, KARAKUNNEL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNKAULAM DISTRICT, PIN – 683562.
10 THRESSIAMMA VINCENT, W/O LATE VINCENT, KACHAPPILLY HOUSE, THAMARACHALKARA, ERNAKULAM DISTRICT, PIN-683562.
11 JOY K.V, AGED 50 YEARS,S/O LATE VINCENT, KACHAPPILLY HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN-683562.
12 JAIMON K.V., AGED 48 YEARS, S/O LATE VINCENT, KACHAPPILLY HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN – 683562.
13 MARY, AGED 45 YEARS, D/O LATE VINCENT, THOTTAKKARA HOUSE, ANAPPARA P.O, ERNAKULAM DISTRICT, PIN – 683581.
14 SR.ANICE CTC, AGED 45 YEARS, D/O LATE VINCENT, CHRIST KING CONVENT, PONNURUNNI, VYTTILLA P.O, ERNAKULAM DISTRICT, PIN-682019.
15 XAVIER, S/O LATE JOSEPH, KOTTUNGAL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN – 683562.
16 PAULOSE, AGED 62 YEARS, S/O LATE JOSEPH, KOTTUNGAL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM, PIN – 683562.
17 ANTONY, AGED 54 YEARS, S/O LATE JOSEPH, KOTTUNGAL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN-683562.
18 ELSY, AGED 66 YEARS, D/O LATE JOSEPH, KOTTUNGAL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN-683562.
19 JIJO ANTONY, AGED 51 YEARS, S/O LATE ANTONY, HAPPY HOMES-1, CEPZ P.O, KAKKANAD, ERNAKUALM DISTRICT, PIN-682037.
20 LIJA GEORGE, AGED 61 YEARS, D/O K.U KORA, KAVANAL HOUSE, KARIMKUNNAM P.O, THODUPUZHA, PIN – 685586.
21 CHINNAKKUTTY, W/O LATE ISSAC, THURUTHUMMEL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN – 683562.
22 SMITHA, D/O LATE ISSAC, THURUTHUMMEL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNKAULAM DISTRICT, PIN – 683562.
23 SNITHA, D/O LATE ISSAC, THURUTHUMMEL HOUSE, THAMARACHAL, KIZHAKKAMBALAM, ERNKAULAM DISTRICT, PIN – 683562.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.S. DIAS, J.
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O.P.(C) No.1679 of 2022 -------------------------------------------------------- Dated this the 1st day of September, 2022
JUDGMENT
The original petition is filed to set aside the order in I.A.No.7 of 2022 (Ext.P7) and I.A.No.8 of 2022 (Ext.P8) in O.S. No.157 of 2009 of the Court of the Subordinate Judge, Perumbavoor.
2. The skeletal facts, relevant for the determination of the original petition are: the petitioners are the plaintiffs 4, 5 and 6 in the above suit filed against the respondents, who are the defendants 4 to 26 for a decree for recovery of possession. The plaintiffs 1 to 3 and the defendants 1 to 3 are no more. An Advocate Commissioner was appointed, who has filed Ext.P2 commission report. In view of the law laid down by this Court in Sabu v. Sasi [2022 (2) KHC 435], wherein this Court has directed that the Commissioner and Surveyor have to prepare a consolidated sketch incorporating all the details pertaining to the property, including ladder, Gline, Checkline and offset measurements which are essential for the components of a survey map and plan, the petitioners filed Ext.P3 application and Ext.P4 application to remove the suit from the list. However, the court below by the impugned Exts.P7 and P8 orders, dismissed Ext.P3 and Ext.P4. Exts.P7 and P8 are erroneous and wrong. Hence the original petition.
3. Heard; Sri. Jose K. Matheikel, the learned counsel appearing for the petitioners.
4. The point is whether there is any error or illegality in Exts.P7 and P8.
5. The suit is instituted for recovery of possession on
02.11.2009. At the instance of the petitioners, an Advocate Commissioner has already filed Ext.P2 report. The suit is listed for trial after a long gap of 13 years. Admittedly, the 1st petitioner has filed his proof affidavit in lieu of his chief examiantion. Now, at this belated stage, the petitioners have felt the need to remit the commission report, in order to comply the law laid down in Sabu (supra).
6. On a consideration of the pleadings and materials on record and the law laid down in Sabu, I am of the definite view that this Court has only elaborated the manner in which a commission report and survey report have to be filed following the principles laid down in Kerala Survey and Boundaries Act, 1961. The decision does not give any cause of action to the petitioners to file a fresh application to remit the commission report. There is no illegality or perversity in Ext.P7 order warranting interference by this Court under Article 227 of the Constitution of India.
The original petition fails and is dismissed.
Sd/-
C.S. DIAS JUDGE
APPENDIX PETITIONERS' EXHIBITS EXHIBITP1 TRUE COPY OF THE PALINT ON OS NO 157 OF 2009 ON THE FILE OF SUB COURT PERUMBAVOOR EXHIBITP2 TRUE COPY OF THE COMMISSION REPORT IN OS NO
157 OF 2009 ON THE FILE OF SUB COURT PERUMBAVOOR EXHIBITP3 TRUE COPY OF IA NO 7/2022 IN OS NO 157/2009 OF THE SUB COURT PERUMBAVOOR EXHIBITP4 TRUE COPY OF IA NO 8/2022 IN OS NO 157 OF
2009 BEFORE SUB COURT, PERUMBAVOOR EXHIBITP5 TRUE COPY OF JUDGMENT IN SABU V. SASI REPORTED IN 2022 (2) KHC 435 EXHIBITP6 TRUE COPY OF INTERIM ORDER DATED 4/8/2022 IN OP(C)NO 1437/2022 OF THE HONOURABLE HIGH COURT OF KERALA EXHIBITP7 TRUE COPY OF ORDER DATED 1/8/2022 IN IA NO 7 OF 2022 IN OS NO 157 OF 2009 OF SUB COURT, PERUMBAVOOR EXHIBITP8 TRUE COPY OF ORDER DATED 1/8/2022 IN IA NO 8 OF 2022 IN OS NO 157/2009 OF SUB COURT, PERUMBAVOOR
