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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942 OP(C).No.1999 OF 2020 AGAINST THE ORDER DATED 7/12/2020 IN I.A.941/2019 IN OS 12/2013 OF MUNSIFF COURT, KOYILANDY,KOZHIKODE DISTRICT ----------
PETITIONER/PETITIONER/PLAINTIFF:
SUKUMARAN M.K.
AGED 49 YEARS S/O.KANNAN NAIR, PENSIONER, RESIDING AT EDAVANA MEETHAL, P.O.ARIKKULAM, ARIKKULAM AMSOM, MAVATT DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
BY ADVS.
SRI.SANTHARAM.P SMT.REKHA ARAVIND SRI.PAUL P. ABRAHAM RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 SIVADASAN M.E., S/O.NARAYANAN NAIR,AGED 57 YEARS, COOLIE, RESIDING AT MEETHALE EDAVALATH, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
2 MADHAVI AMMA W/O.NARAYANAN NAIR, AGED 60 YEARS, SWASTHAM, RESIDING AT THAZHE EDAVALATH KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT -673 614.
3 VIJAYALAKSHMI W/O.VASUDEVAN, AGED 38 YEARS, SWASTHAM, RESIDING AT MEETHALE EDAVALATH, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
4 SYLAJA W/O.RAJENDRAN, AGED 49 YEARS, SWASTHAM, RESIDING AT MEETHALE EDAVALATH, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
5 KARUNAKARAN NAIR S/O.CHERIYOMANA NAIR, AGED 66 YEARS, NUPURAM HOUSE, POYILKAVU, EDAKKULAM AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 306.
6 MADHVAN NAIR S/O.KUNHIKKANNAN NAIR, AGED 80 YEARS, VADAKKEKARA HOUSE, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
7 KUTTIMALU AMMA D/O.CHERYOMANA NAIR, AGED 84 YEARS, ALIYAMBURATH HOUSE, MELUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 306.
8 NARAYANAI AMMA D/O.RAMUNNI NAIR, AGED 85 YEARS, THAZHE EDAVALATH HOUSE, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
9 LAKSHMI AMMA D/O.CHERIYOMANA NAIR, AGED ABOUT 75 YEARS, VADEKARA HOUSE, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
10 PADMINI AMMA D/O.CHERIYOMANA NAIR, AGED 60 YEARS, UNNYAM VEETTIL, NADUVANNUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
11 LATHA AGE NOT KNOWN, D/O.NARAYANAN NAIR, THAZHE EDAVALATH KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
12 KUMARI D/O.NARAYANAN NAIR, AGE NOT KNOWN, THAZHE EDAVALATH KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
13 SREEJA D/O.NARAYANAN NAIR, AGE NOT KNOWN, THAZHE EDAVALATH KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKKODE DISTRICT - 673 614.
14 BINDU D/O.NARAYANAN NAIR, AGE NOT KNOWN, THAZHE EDAVALATH KURUVANGAD AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 614.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 18th day of January, 2021
JUDGMENT
The application to remit the Commissioner's Report and Plan filed by the plaintiff-petitioner, was dismissed by the trial court, against which this original petition has been filed.
2. The court below noticed that, the suit is one for mandatory injunction for removal of obstructions caused to 'D' schedule way and other reliefs, that the encroached portion is shown separately in the Commissioner's Report and Plan and also that the side measurements have also been indicated. Accordingly it was ordered that the report need not be remitted.
3. On the application to remit the Commissioner's Report, the Commissioner was examined on 17.01.2020. In the course of his examination he has stated thus:-
“
സർവᩪ᪔യർ നനീലമഷഷിയഷിൽ കകാണഷിചഷിരഷിᨪന physical boundary .
ഭകാഗതᩈ യഷില report ശരഷിയകായ കകാര്്ᨲൾ ഞകാൻ surveyor plan-
ചചെയഷിᨾചᩂ᪓ങഷിലുᨴ അവ ൽ . plan കകാണഷിചഷിടഷില സർവᩪ᪔യറുചടെ ഈ .”
വകസഷിചല നഷിവൃതഷികᩈ സഹകായകരമല
4. I am of the opinion that the said deposition of the Commissioner needs to be specifically taken note of and appreciated as to why the commissioner formed such an opinion and as to whether it justifies the petitioner's contention regarding the necessity to remit the report. However, it is to be cautioned that I have not expressed, that the plan and report needs to be remitted back. It would suffice if the application is reconsidered by the Court.
5. Accordingly, the order impugned is set aside. The trial court shall pass fresh orders on the application IA 941/2019, on the basis of the materials on record and on hearing the learned counsel on either side.
The original petition is allowed as above.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF PLAINT IN O.S.NO.12/2013 ON THE FILES OF MUNSIFF COURT, KOYILANDY DATED
18/01/2013.
EXHIBIT P2 PHOTOCOPY OF WRITTEN STATEMENT FILED BY 1ST RESPONDENT IN OS 12/2013 OF MUNSIFF COURT, KOYILANDY DATED 22/05/2013.
EXHIBIT P3 PHOTOCOPY OF COMMISSION REPORT AND PLAN NIL DATED NIL I.A.106/13 IN OS.12/13 OF MUNSIFF COURT, KOYILANDY.
EXHIBIT P4 PHOTOCOPY OF COMMISSION REPORT AND PLAN DATED 17/03/2016 FILED IN I.A.1291/2015 IN O.S.12/13 OF MUNSIFF COURT, KOYILANDY.
EXHIBIT P5 PHOTOCOPY OF COMMISSION REPORT AND PLAN DATED 25/03/2019 FILED IN I.A.190/2017 IN O.S.12/13 OF MUNSIFF COURT, KOYILANDY.
EXHIBIT P6 PHOTOCOPY OF WORK MEMOS ISSUED TO THE ADVOCATE COMMISSIONER WHO PREPARED EXHIBIT P5 REPORT.
EXHIBIT P7 PHOTOCOPY OF DEPOSITION GIVEN BY ADVOCATE COMMISSIONER WHO FILED EXHIBIT P5 REPORT DATED 17/01/20.
EXHIBIT P8 PHOTOCOPY OF I.A.NO.941/2019 IN O.S.12/2013 OF MUNSIFF COURT, KOYILANDY DATED
25/06/2019.
EXHIBIT P9 CERTIFIED COPY OF ORDER DATED 07/12/2020 IN I.A.NO.941/2019 IN O.S.12/13 OF MUNSIFF COURT, KOYILANDY.
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