George v. Nidhin B. Parapattu and others

# **THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA,** **1943** **OP(C) NO. 1130 OF 2020** **AGAINST THE ORDER DATED 29.06.2020 IN I.A.NO.2268/2019 IN OS 148/2018 OF MUNSIFF COURT, PERUMBAVOOR** ## **PETITIONER/PLAINTIFF:** GEORGE, AGED 65 YEARS S/O.MATHAI, PARAPATTU HOUSE, VENGOOR KARA, KOMBANAD VILLAGE, ERNAKULAM - 683 546. BY ADVS. P.THOMAS GEEVERGHESE SRI.TONY THOMAS (INCHIPARAMBIL) SRI.E.S.FIROS ## **RESPONDENTS/DEFENDANTS:** 1. NIDHIN B.PARAPATTU, AGED 34 YEARS ASST. PROFESSOR, PARAPPAT HOUSE, VENGOOR P.O., VENGOOR KARA, KOMBANAD VILLAGE, ERNAKULAM - 683 546. 2. NAVEEN B.PARAPATTU, AGED 31 YEARS TEACHER, PARAPPAT HOUSE, VENGOOR P.O., VENGOOR KARA, KOMBANAD VILLAGE, ERNAKULAM - 683 546. 3. NAYAN B.PARAPATTU, AGED 25 YEARS TEACHER, PARAPPAT HOUSE, VENGOOR P.O., VENGOOR KARA, KOMBANAD VILLAGE, ERNAKULAM - 683546. 4. SARAMMA, AGED 56 YEARS TEACHER, PARAPPAT HOUSE, VENGOOR P.O., VENGOOR KARA, KOMBANAD VILLAGE, ERNAKULAM - 683 546. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27.01.2022, THE COURT ON 09.02.2022 DELIVERED THE FOLLOWING: 2 O.P(C).No.1130 of 2020 _**“C.R”**_ ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.1130 of 2020_ ================================ _Dated this the 9[th] day of February, 2022_ ## _**J U D G M E N T**_ Is there any rigid rule that a Commissioner with assistance of Surveyor to measure the plaint schedule property shall not be appointed in any contingency, in a Suit for simple injunction ? 2. This Original Petition(Civil) has been filed under Article 227 of the Constitution of India. The petitioner herein is the plaintiff in O.S.No.148/2018 pending before the Munsiff Court, Perumbavoor. He is aggrieved in the matter of dismissal of I.A.No.2268/2019 filed by the petitioner, who is the plaintiff in the above Suit, to appoint a Survey Commission to measure out the properties of the plaintiff as well as the defendants on the basis of the title deed to locate the same specifically. 3 O.P(C).No.1130 of 2020 3. As per order dated 29.06.2020, the learned Munsiff dismissed the application mainly on the ground that in a Suit for simple injunction, the question to be decided was whether the plaintiff had possession over the plaint schedule property and in such a Suit the commission report already filed along with rough sketch would be sufficient to decide the dispute between the parties. 4. Heard both sides in detail. 5. The learned counsel for the petitioner argued that though the Suit is one for simple injunction, in the written statement filed by the defendants, the nature and lie of the plaint schedule properties were disputed and, therefore, it is highly necessary, in the interest of justice, in order to protect the right of the plaintiff, to measure the property to get a survey plan by locating the lie of the property with clarity. 6. Per contra, it is submitted by the learned counsel for the respondents that in a Suit for simple injunction there is no necessity to appoint a survey commission. Unreported decisions in W.P(c).No.23089/2009 [ _**Chinnamma & anr. v.**_ 4 O.P(C).No.1130 of 2020 _**Antony and anr.**_ ] and O.P(C).No.491/2010 [ _**Thai Valappil Narayanan v. Kulangara Shanthan**_ ] were placed in this regard. In the decision in _**Thai Valappil Narayanan**_ 's case while dealing with a Suit for prohibitory injunction against demolition of boundary and trespass, a learned Single Judge of this Court observed as under: _"2. I am unable to agree with that argument of learned counsel. It is seen that the suit is merely for a decree for prohibitory injunction against respondent demolishing boundaries, trespassing into it or constructing a new road along the suit property. Court fee for the said purpose is paid under Section 27(c) of the Court Fees and Suits Valuation Act. In a suit for injunction except OP(C) No.491/2010 for the purpose of proving possession if absolutely necessary, issue regarding title is irrelevant. Hence it is not necessary in a suit for injunction of this nature to raise an issue regarding title. Advocate Commissioner has inspected the property and submitted reports. It is true that property of respondent is situated on the west of the suit property. But, there again there is no dispute regarding the boundary in between. Advocate Commissioner has reported about a way through the suit property. It is in the above circumstances that the learned Munsiff has observed that no question of survey commission is involved and what is required to be proved is only whether respondent has right of access through the suit property. May be, being a suit for injunction petitioner has to provide that property is situated within defined boundaries. But here there is no dispute regarding boundaries. On the facts of the case a survey commission is not required. There is no reason to interfere with the_ 5 O.P(C).No.1130 of 2020 _impugned order."_ 7. In another decision in W.P(c).No.23089/2009 [Chinnamma & anr. v. Antony and anr.], the learned Single Judge has, while dealing with an application for appointment of a Commissioner with assistance of a Surveyor which was dismissed by the court below, held as under: _"In a suit for injunction also, where the description of the suit property is challenged by the defendants setting forth a contention that the allegations raised in the plaint with respect to the plaint property and the claim thereunder are not correct, it is necessary to determine and identify the property. Identification of the suit property is essential to grant a decree of injunction. Without such identification, if any decree of injunction is passed, it will give rise to further complications if at all the decree is violated. Ext.P4 order is liable to be set aside, I do so. Learned Munsiff is directed to pass orders afresh on Ext.P3 application taking note of the observations made above and in accordance with law. Writ Petition is disposed as indicated above."_ 8. Thus the law emerges is that appointment of a Survey Commission is not necessary in a case for simple injunction, where the property is identified with certainty based on the local commission report, though the other side disputes the identity of the property in the written statement. However, there is no rigid rule that a commissioner with the 6 O.P(C).No.1130 of 2020 assistance of a surveyor never be appointed in a Suit for simple injunction. Legal position is emphatically clear that when the identity of the plaint schedule items, found by the Commissioner on the basis of local inspection report lacks certainty to identify the plaint schedule items and to pass an effective decree and when the other side seriously disputes the identity with specific mention that the description is incorrect and misleading, in such cases, appointment of a survey commission to locate plaint schedule items with the aid of survey plan is the justified order. In such contingency, a commission with the assistance of a Surveyor to be allowed, even in a Suit filed for simple injunction. But such a course of action shall be exercised in cases of exceptional nature like the one in hand. 9. Having held so, it is necessary to peruse the location commission report and the rough sketch along with the description of the plaint schedule properties in this case, where the defendants filed counter-claim to remove quarry waste from the counter claim schedule property. There are 7 O.P(C).No.1130 of 2020 four items of property in the plaint schedule. The rough sketch would show that the same is quite insufficient to exactly identify th plaint schedule items. Thus identification of the plaint schedule items based on a survey commission report and plan is absolutely necessary. Apart from that, perusal of the written statement filed by the defendants herein along with counter claim having 7 pages, produced as Ext.P2 herein, also is essential. As per the averments in para.3 of the written statement, the identity of the plaint schedule items was zealously disputed. The said portion is extracted hereunder: _"The plaintiff does not have exclusive possession over plaint A schedule item No.1 property. It is also not stated as to how the plaintiff obtained plaint A schedule item No.2 property. The description of plaint A schedule item Nos.1 and 2 properties is misleading. The description of plaint C schedule way is also incorrect and therefore, the location of plaint A schedule item No.2 property mentioned with reference to the plaint C schedule way is incorrect and hence denied. It is respectfully submitted that the existence of a way through the property of the plaintiff is mentioned in Document No.1440/1979 of the SRO, Perumbavoor. The plaintiff suppressed the said fact and filed the suit alleging that these defendants are trying to cut open a way through his property."_ 8 O.P(C).No.1130 of 2020 Even a cursory reading of the above text would convince that the defendants herein challenged the identity of the plaint schedule properties. In the above circumstances, the plaintiff filed an application for appointment of a survey commission to locate the plaint schedule items with certainty and in such a case the learned Munsiff went wrong in dismissing the application. 10. Therefore, the order impugned is set aside and I.A.No.2268 of 2019 in O.S.148/2018 on the file of Munsiff Court, Perumbavoor is allowed. The learned Munsiff is directed to appoint the Advocate Commissioner with assistance of a Surveyor and fix the bata appropriately within a period of 15 days from the date of production of a copy of this judgment. Thereafter, the learned Munsiff shall ensure filing of commission report with survey plan within a period of 45 days therefrom so as to dispose of the case at the earliest. 9 O.P(C).No.1130 of 2020 The Original Petition is allowed accordingly. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ 10 O.P(C).No.1130 of 2020 ## **APPENDIX OF OP(C) 1130/2020** PETITIONER'S EXHIBITS |EXHIBIT P1|TRUE COPY OF THE PLAINT IN OS| |---|---| ||148/2018 ON THE FILES OF MUNSIFF'S| ||COURT, PERUMBAVOOR.| |EXHIBIT P2|TRUE COPY OF THE WRITTEN STATEMENT IN| ||OS 148/2018 OF MUNSIFF'S COURT,| ||PERUMBAVOOR.| |EXHIBIT P3|TRUE COPY OF REPLICATION FILED BY THE| ||PETITIONER IN OS 148/2018 OF| ||MUNSIFF'S COURT, PERUMBAVOOR.| |EXHIBIT P4|TRUE COPY OF THE REPORT FILED BY THE| ||ADVOCATE COMMISSIONER DATED| ||22/05/2018.| |EXHIBIT P5|TRUE COPY OF THE INTERIM APPLICATION| ||I.A.NO.2268/2019 IN OS 148/2018| ||BEFORE THE MUNSIFF COURT,| ||PERUMBAVOOR.| |EXHIBIT P6|TRUE COPY OF THE COUNTER AFFIDAVIT| ||FILED BY THE RESPONDENTS IN THE ABOVE| ||I.A.NO.2268/2019.| |EXHIBIT P7|THE TRUE COPY OF THE ORDER OF THE| ||HON'BLE MUNSIFF COURT, PERUMBAVOOR,| ||IN THE ABOVE IA NO.2268/2019.|