Deputing Advocate Commissioner for identification of property doesn’t violate owner’s rights: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FRIDAY THE 19TH DAY OF FEBRUARY 2021 30TH MAGHA 1942 OP(C).No.76 OF 2020 AGAINST THE ORDER IN IA 1992 2019 IN OS 204 2014 OF PRINCIPAL SUB COURT TRIVANDRUM AGED 44 YEARS D O. BREJITT IDEMMA RESIDING AT PRAKASH BHAVAN THUNDATHIL AYIROOPARA VILLAGE THIRUVANANTHAPURAM AND NOW RESIDING AT VIMALA BHAVAN VALIYOTTUKONAM PEYAD PERUKAVU P.O. BY ADV. SRI.LATHEESH SEBASTIAN S O. THOMSON THOMSON BHAVAN KULAKKOTTUKONAM THUNDATHIL P.O. THIRUVANANTHAPURAM 695 581 BY ADV. SRI.R.SUNIL KUMAR BY ADV. SMT.A.SALINI LAL THIS OP HAVING BEEN FINALLY HEARD ON 19.02.2021 THE COURT ON THE SAME DAY DELIVERED THE O.P.(C)No.76 2020 2 Dated this the 19th day of February 2021 JUDGMENT Ext.P6 application filed by the plaintiff in O.S.No.204 2014 before the Principal Sub Court Thiruvananthapuram was dismissed. Being aggrieved by the impugned order dated 03.12.2019 the plaintiff has filed this original petition. The suit was filed for a decree of permanent injunction as well as for a decree for constructing a compound wall made up of cement hollow bricks on a granite foundation at a height of five feet through northern boundary separating plaint property from the property of the defendant In Ext.P6 application for issue of Commission the plaintiff sought measurement of the plaint property along with counter claim schedule II that belongs to the defendant on the basis of survey records. Along with the prayer cost of the O.P.(C)No.76 2020 3 compound wall to be constructed was also sought The defendant opposed the application contending that issue of Commission for the purposes sought was beyond the scope of suit. The court below accepting the objection dismissed the application. In paragraph No.5 of the order the court below noticed that in as much as the plaintiff has a definite case that suit property is situated within the well defined boundaries and especially that the Manthirana existed on the northern side of plaint property it was quite unnecessary to depute an Advocate Commissioner for measuring out the property I heard the learned counsel for the petitioner as well as the respondent Learned counsel for the petitioner submits that looking at the entirety of the plaint and especially reading the amended prayer AA in the O.P.(C)No.76 2020 4 suit and the contentions of the respondent it could be made out that the suit is basically one for demarcation and fixation of boundary and therefore the issue of Commission to identify the northern boundary on the basis of survey records is highly essential. Learned counsel for the respondent reacting to this submission contended that in fact there is no prayer for fixation of boundary and in as much as there existed a Manthirana on the northern side of the suit property canvassing a decree for fixation of boundary itself is meaningless. Learned counsel further pointed out that in order to maintain a suit for putting up a boundary the neighbouring landowner property should also be scheduled in the plaint which has not been done in this case. After hearing both sides I am of the opinion that the contention canvassed by the O.P.(C)No.76 2020 5 learned counsel for the respondent cannot be taken to be an absolute proposition of law applicable in all cases indiscriminately. I am satisfied that deputation of Advocate Commissioner for measurement and identification of northern boundary of the property will not affect the right of the defendant. On the other hand that will only facilitate a fair and final decision of the matter in dispute between parties. For the reason above said I am of the opinion that the impugned order is worth interfering and cannot be sustained In the result the original petition is allowed. I.A.No.1992 2019 filed by the petitioner is allowed. The court below is directed to depute an Advocate Commissioner to note down matters set forth in I.A.No.1992 2019. It is made clear that this order will not affect the respondent s right to take objections as to the relevancy of the plan O.P.(C)No.76 2020 6 and report when issues arising in the suit are determined by the court. Being a suit of the year 2014 the court below is directed to dispose the same within a period of six months from the date of receipt of certified copy of this judgment All pending interlocutory applications are Sd T.V.ANILKUMAR JUDGE O.P.(C)No.76 2020 PETITIONER S EXHIBITS 7 TRUE COPY OF THE PLAINT IN O.S.NO.204 2014 OF PRINCIPAL COURT TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM OF THE RESPONDENT TRUE COPY OF THE REPLICATION TO EXT.P2 WRITTEN STATEMENT OF THE RESPONDENT FILED BY THE PETITIONER TRUE COPY OF COMMISSIONER APPLICATION FILED BY THE PETITIONER AS I.A.NO.1457 2014 IN O.S.NO.243 2014 OF MUNSIFF COURT THIRUVANANTHAPURAM TRUE COPY OF THE REPORT AND PLAN OF THE ADVOCATE COMMISSIONER DATED 1.3.2014 TRUE COPY OF I.A.NO.1992 2019 IN O.S.NO.204 2019 BEFORE THE SUB COURT TRUE COPY OF THE OBJECTION TO EXT.P6 TRUE COPY OF THE ORDER IN I.A.NO.1992 2019 IN O.S.NO.204 2019 BEFORE THE SUB COURT THIRUVANANTHAPURAM

Summary: Deputation of the Advocate Commissioner for measurement and identification of boundaries of a property does not violate the owner’s rights. On the other hand, it only facilitates a fair and final decision of the matter in dispute between parties. This assertion was made by the Kerala High Court presided by J. T.V. Anil Kumar in the case of E.P.PRABHA vs. T.CHRISPAN [OP(C).No.76 OF 2020]. An application filed by the plaintiff before the Principal Sub Court, Thiruvananthapuram, was dismissed. Being aggrieved by the impugned order, the plaintiff has filed this original petition. The suit was filed for a decree of permanent injunction as well as for a decree for constructing a compound wall made up of cement hollow bricks on a granite foundation at a height of five feet through northern boundary separating plaint property from the property of the defendant. In the application for issue of Commission, the plaintiff sought measurement of the plaint property along with counter claim schedule II that belongs to the defendant on the basis of survey records. Cost of the compound wall to be constructed, was also sought. The defendant contended that issue of Commission for the purposes sought was beyond the scope of suit. The court below accepting the objection, dismissed the application. In the order the court below noticed that in as much as the plaintiff has a definite case that suit property is situated within the well defined boundaries and especially that the Manthirana existed on the northern side of plaint property, it was quite unnecessary to depute an Advocate Commissioner for measuring out the property. Learned counsel for petitioner submitted that after reading the amended prayer in suit and the contentions of respondent, it’s evident that the suit was basically one for demarcation and fixation of boundary and therefore the issue of Commission to identify the northern boundary on the basis of survey records is highly essential. The respondent contended that in fact there is no prayer for fixation of boundary and in as much as there existed a Manthirana on the northern side of the suit property, canvassing a decree for fixation of boundary itself is meaningless and pointed out that in order to maintain a suit for putting up a boundary, the neighbouring landowner’ property should also be scheduled in the plaint which had not been done in this case.