Abdul Asees v. Gopinadhan and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ## **`THE HONOURABLE MR. JUSTICE G.GIRISH`** ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 ``` ## **`OP(C) NO. 2058 OF 2021`** ``` IN THE MATTER OF OS NO.265 OF 1999 OF MUNSIFF COURT,VARKALA ``` ## **`PETITIONER/PETITIONER/PLAINTIFF:`** ``` ABDUL ASEES AGED 65 YEARS ``` ``` S/O. ABDULLA MUSALIYAR, KODIKKAKATHU VEEDU, NADAYARA, KANNAMBA DESOM, VARKALA VILLAGE, VARKALA P.O., THIRUVANANTHAPURAM-695 141. ``` ``` BY ADV G.S.REGHUNATH ``` ``` RESPONDENTS/COUNTER PETITIONERS 1 AND 3 TO5/DEFENDANTS 1 & ``` ``` 3 TO 5: ``` - **`1 GOPINADHAN, S/O. SEKHARAN, MAKAM VILAYIL VEEDU, PULLANNICODE DESOM, VARKALA VILLAGE, VARKALA P.O., THIRUVANANTHAPURAM-695 141.`** ``` 2 SUDHARMMA, W/O. GOPINADHAN, MAKAM VILAYIL VEEDU, PULLANNICODE DESOM, VARKALA VILLAGE, VARKALA P.O., THIRUVANANTHAPURAM-695 141. ``` ``` 3 RAJENDRAN, S/O. BHAKARAN, CHIRAPPADU PUTHEN VEEDU, KULANADA P.O., KULANADA VILLAGE, PATHANAMTHITTA DISTRICT-689 503. ``` ``` 4 SUCHATHAMBA, D/O. BHAKARAN, CHIRAPPADU PUTHEN VEEDU, KULANADA P.O., KULANADA VILLAGE, PATHANAMTHITTA DISTRICT-689 503. ``` ``` BY ADVS. ``` ``` M.V.BIPIN ``` ``` A.S.BEENU ``` ``` THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.07.2024, THE COURT ON 29.07.2024 DELIVERED THE FOLLOWING: ``` 2 O.P.(C) No.2058/2021 **‘CR’** **G.GIRISH, J. --------------O.P.(C) No.2058 of 2021 -----------------------------Dated this the 29[th] day of July, 2024 --------------------------------------------** **J U D G M E N T** Ext.P15, P16 and P23 orders passed by the Munsiff’s Court, Varkala in O.S.No.265/1999 are under challenge in this Original Petition filed under Article 227 of the Constitution of India by the plaintiff in the said suit. Exts.P15 and P16 are orders disallowing the prayer for impleadment of additional defendants. Ext.P23 is one rejecting the prayer for removal of Advocate Commissioner appointed in the case for measuring out the properties. 2. The suit is one for fixation of boundary and anciliary reliefs. The property of the plaintiff has been scheduled as plaint A schedule property, and that of the defendant as plaint B schedule property. Earlier, the suit was decreed, but it was challenged in appeal by the plaintiff himself. It is the second stage of litigation which is now pending before the trial court 3 O.P.(C) No.2058/2021 after a remand of the case by the appellate court. Upon the application of the plaintiff, an Advocate Commissioner was appointed to measure out the properties and to fix the southern boundary of plaint A schedule property with the assistance of Taluk Surveyor. However, in the meanwhile, the plaintiff filed I.A.No.2693/2019 for impleadment of the wife and mother-in-law of the defendant as additional defendants in the suit stating the reason that he got information that the aforesaid persons are having some right over the plaint B schedule property. During the pendency of the above impleadment application, the mother-in-law of the defendant died, and accordingly, the plaintiff filed I.A.No.1/2020 for the impleadment of legal representatives of the mother-in-law of defendant. The learned Munsiff dismissed I.A.No.2693/2019 vide Ext.P15 order holding that the impleadment sought for cannot be allowed since the plaintiff had not made clear as to what kind of right or interest the proposed additional defendants were having over the plaint schedule properties. Consequential to the dismissal of I.A.No.2693/2019, I.A.No.1/2020 was also dismissed as infructuous vide Ext.P16 4 O.P.(C) No.2058/2021 order. Thereafter, the plaintiff filed I.A.No.16/2021 for the removal of the Advocate Commissioner appointed in the case. The reason stated is that at the time of visit of the suit properties, the Advocate Commissioner spent most of his time in the defendants’ property, and that he was not ready to accept the demand of the plaintiff to conduct the measurement of the properties in the way suggested by the plaintiff. The above application of the plaintiff was dismissed by the learned Munsiff vide Ext.P23 order. It is thus that the plaintiff is now before this Court with the present petition challenging Ext.P15, P16 and P23 orders passed by the trial court. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 4. As already stated above, Ext.P15 is the order of dismissal of the impleadment application filed by the plaintiff who wanted to arraign the wife and mother-in-law of the defendant as additional defendants stating the reason that he had got information that the aforesaid persons were having some right over the plaint B schedule property belonging to 5 O.P.(C) No.2058/2021 the defendant. Apart from a bare statement in the above regard, the affidavit filed by the plaintiff in support of the above impleadment application (Ext.P12), did not contain anything to show that the presence of the aforesaid persons was necessary for the effectual and complete adjudication of the dispute and to settle all the questions involved in the suit. It is under the above circumstances that the learned Munsiff passed Ext.P15 order disallowing the prayer of the plaintiff seeking impleadment of the wife and mother-in-law of the defendant. Ext.P16 order has been passed consequential to Ext.P15 order since there arose no question of a further impleadment of the legal representatives of the mother-inlaw of the defendant in view of the dismissal of Ext.P12 impleadment application. There is no definite contention for the plaintiff that the proposed additional defendants are coowners of plaint B schedule property. Ext.P12 impleadment application does not disclose that the persons sought to be impleaded as additional defendants, shared common boundary with the plaintiff, or that those persons committed any sort of trespass or encroachment into the property of the 6 O.P.(C) No.2058/2021 plaintiff. On the other hand, it appears from the rival contentions raised by the parties that the actual dispute is in between the plaintiff and the defendant in respect of the identity and boundaries of their respective properties. Thus, there is absolutely no patent illegality or perversity in the aforesaid orders of the trial court warranting interference in exercise of Article 227 of the Constitution of India. 5. As far as Ext.P23 order is concerned, the allegation of the plaintiff about the Commissioner spending most of his time in the plaint B schedule property with the defendants, and that he was not ready to accept the demand of the plaintiff to measure out the property in a particular manner, has been rightly found by the trial court as flimsy and trivial in nature. It is to be noted that the trial court has deputed the Advocate Commissioner to measure out the properties and to fix the southern boundary of plaint A schedule property with the assistance of Taluk Surveyor. Hence there is absolutely no reason for the plaintiff to be over-apprehensive about the mode of measurement of the properties since the Taluk Surveyor deputed to assist the Advocate Commissioner, 7 O.P.(C) No.2058/2021 is expected to conduct the measurement in accordance with the established procedures for measurement of land and fixing the boundaries. There is no need to remind or advise the Taluk Surveyor about the necessity to identify and locate the properties on the basis of the relevant land records and the survey-marks at various points, before proceeding with the measurement. Neither the plaintiff, nor the defendants could compel the Advocate Commissioner and the Surveyor to conduct the measurement in a particular manner which they think to be proper. It is upto the Advocate Commissioner and the Taluk Surveyor to chalk out the modalities to be followed for measuring out the properties in a proper and foolproof manner, and to fix the boundaries in accordance with the order of the court. Therefore, the grievance of the plaintiff that the Advocate Commissioner was not amenable to conduct the measurement in a manner as demanded by him, is totally unfounded. Needless to say that the request of the plaintiff to remove the Advocate Commissioner for the aforesaid reasons, is totally unsustainable, and the trial court has rightly rejected the prayer in the above regard. In any case, if after 8 O.P.(C) No.2058/2021 the completion of the local investigation and the filing of Commission Report and Plan, the plaintiff finds that there were anything objectionable in that report, he could very well move an application under Order XXVI Rule 10 Sub Rule (3) before the trial court for appropriate curative measures by way of further enquiry, or if the situation so warrants, for setting aside the Commission Report and Plan. 6. It is well settled that the extraordinary supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, over the subordinate courts and tribunals, cannot be invoked for every drop of hat whenever parties before such forums are aggrieved by adverse orders passed against them. Only in cases where the orders of such courts and tribunals are found to be perverse, patently illegal and flagrant abuse in violation of fundamental principles of law or justice, could the High Court step in, and pass appropriate orders under Article 227 of the Constitution of India to keep such courts and tribunals within the bounds of their authority, and to see that they do the duty expected or required of them in a legal manner. 9 O.P.(C) No.2058/2021 7. It has been held by the Apex Court in **Garment Craft (M/s) v. Prakash Chand Goel [(2022) 4 SCC 181]** that the High Court exercising supervisory jurisdiction under Article 227 does not act as a court of first appeal to reappreciate, re-weigh the evidence or facts upon which the determination under challenge is based. It has been further held thereunder that the supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The Hon’ble Supreme Court further observed in the aforesaid decision that the High Court is not to substitute its own decision on facts and conclusion for that of the inferior court or tribunal, and that the jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse and violation of fundamental principles of law or justice. 8. In **Estralla Rubber v. Dass Estate (Pvt) Ltd [(2001) 8 SCC 97]** , the Apex Court observed as follows in paragraph 6 of that judgment: _“6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in_ 10 O.P.(C) No.2058/2021 _number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or tribunals. Exercise of this power and interfering with the orders of the courts or tribunal is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to.”_ 9. Going by the law laid down by the Apex Court in the above regard upon the scope and ambit of the powers conferred upon the High Courts under Article 227 of the 11 O.P.(C) No.2058/2021 Constitution of India, Exts.P15, P16 and P23 orders passed by the trial court are beyond the scope of interference in a petition like the one filed by the plaintiff herein. Therefore, the present Original Petition is bereft of merit. In the result, the petition is hereby dismissed. Transmit a copy of this judgment immediately to the trial court, for expeditious disposal of the suit. (sd/-) ## **G.GIRISH, JUDGE** jsr 12 O.P.(C) No.2058/2021 ## **`APPENDIX OF OP(C) 2058/2021`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 TRUE COPY OF THE SALE DEED NO.2392 OF 1992 DATED 18.6.1992.`** - **`Exhibit P2 TRUE COPY OF THE SALE DEED NO.2575 OF 1993 DATED 15.7.1993.`** - **`Exhibit P3 TRUE COPY OF THE SALE DEED NO.4735 OF 1993 DATED 24.12.1993.`** - **`Exhibit P4 TRUE COPY OF THE SURVEY PLAN OF THE PROPERTY INCLUDED IN EXHIBIT-P1 IS 5 ACRE 21 CENTS WHICH IS A PORTION OF 7 ACRES 6 CENTS COMPRISED IN SURVEY NOS.1874, 1873, 1872, 1887, 1851, 1871, 1882 AND 1883.`** - **`Exhibit P5 TRUE COPY OF THE SURVEY PLAN TAKEN FROM THE CENTRAL SURVEY OFFICE, THIRUVANANTHAPURAM AND PRODUCED BEFORE THE LOWER COURT, REGARDING SURVEY PLAN OF OLD SURVEY NOS.1870, 1871, 1851, 1850 ETC.`** - **`Exhibit P6 TRUE COPY OF THE SURVEY PLAN OF SURVEY NOS.1881, 1883 ETC.`** - **`Exhibit P7 TRUE COPY OF THE SURVEY PLAN OF SURVEY NOS.1872, 1873, 1874 ETC.`** - **`Exhibit P8 TRUE COPY OF THE SALE DEED NO.2425 OF 1993 DATED 3.7.1993.`** - **`Exhibit P9 TRUE COPY OF THE DOCUMENT NO.5011 OF 1992 TAKEN IN THE NAME OF KAMALAKSHI AMMA WHO WAS THE MOTHER-INLAW OF DEFENDANT DATED 18.12.1992.`** - **`Exhibit P10 TRUE COPY OF THE DOCUMENT NO.5024/1992 DATED 19.12.1992.`** - **`Exhibit P11 TRUE COPY OF THE DOCUMENT NO.2893 OF 1992 DATED 24.7.1992.`** 13 O.P.(C) No.2058/2021 - **`Exhibit P12 TRUE COPY OF I.A.NO.2693 OF 2019 IN O.S.NO.265/1999 DATED 3.9.2019 ON THE FILE OF MUNSIFF'S COURT, VARKALA.`** - **`Exhibit P13 TRUE COPY OF THE OBJECTION FILED BY DEFENDANT TO I.A.NO.2693 OF 2019 IN O.S.NO.265/1999 DATED 18.9.2019 ON THE FILE OF MUNSIFF'S COURT, VARKALA.`** - **`Exhibit P14 TRUE COPY OF THE I.A.NO.1/2020 IN O.S.NO.265/1999 DATED 9.7.2020 ON THE FILE OF MUNSIFF'S COURT, VARKALA FOR IMPLEADING LEGAL HEIRS OF KAMALAKSHI AMMA.`** - **`Exhibit P15 TRUE COPY OF THE ORDER ON I.A.NO.2693/2019 IN O.S.NO.265/1999 DATED 25.8.2020 OF THE MUNSIFF'S COURT, VARKALA.`** - **`Exhibit P16 TRUE COPY OF THE ORDER ON I.A.NO.1/2020 IN O.S.NO.265/1999 DATED 28.8.2020 OF THE MUNSIFF'S COURT, VARKALA.`** ``` Exhibit P17TRUE COPY OF THE PETITION I.A.NO.6/2020 DATED 7.9.2020 ON THE FILE OF MUNSIFF'S COURT, VARKALA. ``` - **`Exhibit P18 TRUE COPY OF THE I.A. IN O.S.NO.265/1999 DATED 27.9.2020 ON THE FILE OF MUNSIFF'S COURT, VARKALA FOR DIRECTION TO COMMISSIONER TO MEASURE THE PROPERTIES COMPRISED IN EXHIBITS-P9, P10 AND P11 ALSO FOR DEMARCATING TEH CORRECT BOUNDARY OF PLAINT SCHEDULE PROPERTIES.`** ``` Exhibit P19TRUE COPY OF THE ORDER DATED 14.9.2020 IN I.A.NO.4/2020 IN O.S.NO.265/1999 OF MUNSIFF'S COURT, VARKALA. Exhibit P20TRUE COPY OF THE ORDER DATED 6.10.2020 IN I.A.NO.6/2020 IN O.S.NO.265/1999 OF MUNSIFF'S COURT, VARKALA. Exhibit P21TRUE COPY OF THE PETITION FILED AS I.A.NO.16 OF 2021 IN O.S.NO.265/1999 ON THE FILE OF MUNSIFF'S COURT, VARKALA DATED 29.9.2021. Exhibit P22TRUE COPY OF THE OBJECTION FILED BY DEFENDANT TO I.A.NO.16/2021 IN O.S.NO.265/1999 DATED 7.10.2021 ON THE FILE OF MUNSIFF'S COURT, VARKALA. ``` 14 O.P.(C) No.2058/2021 ``` Exhibit P23TRUE COPY OF THE ORDER DATED 20.10.2021 IN I.A.NO.16/2021 IN O.S.NO.265/1999 OF MUNSIFF'S COURT, VARKALA. ``` - **`Exhibit P24 TRUE COPY OF THE TYPED COPY OF THE 'B' DIARY IN O.S.NO.265/1999 ON THE FILE OF MUNSIFF'S COURT, VARKALA.`** - **`Exhibit P25 TRUE COPY OF THE PLAINT IN O.S.NO.265/1999 ON THE FILE OF MUNSIFF COURT, VARKALA DATED NIL.`** - **`Exhibit P26 TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM IN O.S.NO.265/1999 DATED 12.9.2001 ON THE FILE OF MUNSIFF COURT, VARKALA.`**