Kottarathil Mohanan v. Abdul Hameed and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 8TH DAY OF MARCH 2013/17TH PHALGUNA 1934** **OP(C).NO. 853 OF 2013 (O)** **-----------------------------------I.A. NO.791 OF 2012 IN O.S. NO.117 OF 2010, MUNSIFF-MAGISTRATE'S COURT, MANANTHAVADY** ## **PETITIONER(S):** **----------------------** **KOTTARATHIL MOHANAN, AGED 56 YEARS S/O SANKARAN, MELEPERAZHIYIL, FAROKE COLLEGE (P.O) BALIPRAM AMSOM, KARINKALLAYI DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT.** **BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL** ## **RESPONDENT(S):** ## **-------------------------** ## **1. ABDUL HAMEED,, AGED 57 YEARS** **S/O MUSHAFA, MAYIKKARA PUTHIYA PURAYKKAL VEEDU THANA (P.O), MADAYI AMSOM, DESOM KANNUR DISTRICT-670 001.** ## **2. FIRDAS MUSAFI,, AGED 37 YEARS** **S/O MUSHAFA, BANKITAVIDA, THANA (P.O.) MADAYI AMSOM DESOM, MANNUR DISTRICT REPRESENTED BY THE POWER OF ATORNEY HOLDER ABDUL HAMEED, MAYIKKARA PUTHIYA PURAYKKAL VEEDU THANA P.O., MADAYI AMSOM, DESOM KANNUR DISTRICT-670 001.** ## **3. NAZAR,, AGED 36 YEARS** **S/O ABDUL HAMEED, BANKITAVIDA, THANA (P.O.) MADAYI AMSOM, DESOM, KANNUR DISTRICT REPRESENTED BY THE POWER OF THE ATTORNEY HOLDER ABDUL HAMEED, MAYIKKARA PUTHIYA PURAYKKAL VEEDU THANA (P.O), MADAYI AMSOM, DESOM KANNUR DISTRICT-670 001. R BY ADV. SRI.P.BHARATHAN R BY ADV. SRI.GEORGE MATHEWS** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08-03-2013, ALONG WITH OPC. 908/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P(C) NO.853 OF 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT P1: A TRUE COPY OF THE PLAINT IN O.S.NO.117 OF 2010.** **EXHIBIT P2: A TRUE COPY OF THE I.A.FILED BY THE 1ST DEFFENDANT SEEKING PERMISSION TO THE ACT THE 1ST DEFENDANT/IST RESPONDENT HEREIN AS THE AUTHORIZED AGENT OF THE RESPONDENTS 2 AND 3.** **EXHIBIT P3: A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS.** **EXHIBIT P4: A TRUE COPY OF THE INITIAL REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.NO.117 OF 2010.** **EXHIBIT P5: A TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER.** **EXHIBIT P5(A): A TRUE COPY OF THE PLAN.** **EXHIBIT P6: A TRUE COPY OF THE APPLICATION FILED BY THE PETITIOENR FOR AMENDING THE PLAINT AS I.A.NO.791 OF 2012 INO.S.NO.117 OF 2010.** **EXHIBIT P7: A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST RESPONDENT FOR AND ON BEHALF OF THE ALL THE RESPONDENTS.** **EXHIBIT P8: A TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF MAGISTRATE COURT, MANANTHAVADY IN I.A.NO.791 OF 2012 IN O.S.NO.117 OF 2010.** ## **RESPONDENT(S)' EXHIBITS:** **NIL** **TRUE COPY** **P.S. TO JUDGE** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) Nos. 853 & 908 of 2013 ==================================== Dated this the 08[th] day of March, 2013** ## **J U D G M E N T** These Original Petitions arise from separate orders passed by the learned Munsiff-Magistrate's Court, Mananthavady in O.S. No.117 of 2010. 2. Plaintiff filed O.P. No.853 of 2013 against Ext.P8, order refusing to allow amendment of plaint. Defendants filed O.P. No.908 of 2013 against Ext.P6, order refusing to remit Ext.P4, report and plan. 3. Parties are referred as petitioner and respondents as in O.P(C) No.853 of 2013. 4. Petitioner sued the respondents for a decree for prohibitory injunction. Exhibit P1 is the copy of plaint. Petitioner has prayed for a decree restraining respondents from trespassing into the suit property, altering or destroying boundaries or re-fixing the boundaries. Petitioner has paid court fee under Section 27(c) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). 5. Respondents resisted the suit disputing title and O.P(C) Nos 853 & 908 of 2013 -: 2 :- ## possession claimed by petitioner over the suit property. 6. Petitioner filed I.A. No.791 of 2012 for amendment of plaint. Purport of that application was to correct southern boundary of the suit property as belonging to E.V. Damodaran instead of mention in the plaint schedule as road. That application was resisted by the respondents and dismissed by the learned Munsiff-Magistrate as per Ext.P8, order. 7. Respondents filed I.A. No.913 of 2012 to remit Ext.P4, report and plan challenging identification of the suit property made by the Advocate Commissioner and Surveyor. They contended that measurement is made in such a way that it trespasses into the suit property belonging to the respondents. 8. So far as Ext.P8, order in O.P. No.853 of 2013 is concerned, learned Munsiff-Magistrate observed that application for amendment was preferred after the Advocate Commissioner submitted report and plan and that Advocate Commissioner has reported southern boundary of the suit property as that of E.V.Damodaran. It is observed that respondents have disputed identity of the suit property from the very beginning of the proceeding and in the above circumstance, amendment prayed for cannot be allowed. O.P(C) Nos 853 & 908 of 2013 -: 3 :- 9. Having heard learned counsel for the petitioner and the learned Senior Advocate for respondents, I am unable to sustain Ext.P8, order. What is sought to be corrected in the plaint is the southern boundary description of plaint schedule. There is no reason why petitioner should not be permitted to make the amendment. That amendment is necessary for deciding real controversy between the parties. Hence I am inclined to allow Ext.P6, application - I.A. No.791 of 2012. 10. Coming to Ext.P6, order in O.P(C) No.908 of 2013, it is pointed out by the learned Senior Advocate from Exts.P2 and P4 that the Advocate Commissioner was not able to find any demarcating boundary between the suit property and property admittedly belonging to the respondents. According to the learned Senior Advocate, measurement is made in such a way as to take in portion of property belonging to the respondents. Apprehension of the respondents is that if Ext.P4, plan remains, possibility of learned Munsiff-Magistrate granting a decree for prohibitory injunction as per that plan which actually takes in property of the respondents cannot be ruled out. 11. I must notice that as learned Munsiff-Magistrate has pointed out in Ext.P6, order in O.P(C) No.908 of 2013, the suit O.P(C) Nos 853 & 908 of 2013 -: 4 :- being merely for prohibitory injunction what is required to be decided is possession and identity of property. The Supreme ## Court in **Anathula Sudhakar v. P.Buchi Reddy6** **(Dead) By Lrs. And Others** ([2008] 4 SCC 594) held that when complicated questions of title are involved in a suit for injunction, parties are to be relegated to a comprehensive suit on title. There is no reason why the learned Munsiff-Magistrate should go into complicated question of title in the present suit which is merely for prohibitory injunction, paying court fee under Sec.27(c) of the Act. If as pointed out by the learned Senior Advocate there is no demarcating boundary at spot between the suit property and property of respondents, that is a matter which respondents could urge before learned Munsiff-Magistrate while the case is being heard. 12. If on the other hand in the course of trial when the Advocate Commissioner and Surveyor are examined or on account of any change in the nature of prayer in the plaint, learned Munsiff finds that it is necessary to get Ext.P4, report and plan remitted to the Advocate Commissioner for clarification, if any, I make it clear that Ext.P6, order in O.P. No.908 of 2013 will not stand in the way of learned Munsiff-Magistrate doing so but O.P(C) Nos 853 & 908 of 2013 -: 5 :- bearing in mind that if the suit continues to be one merely for injunction, learned Munsiff-Magistrate is to decide the suit based on possession of the property with the parties concerned. Resultantly, these Original Petitions are disposed of as under: ## **I. O.P(C)No.853 of 2013.** (i) Exhibit P8, order dated 15.02.2013 on I.A. No.791 of 2012 in O.S. No.117 of 2010 of Munsiff-Magistrate's Court, Mananthavady is set aside. (ii) I.A. No.791 of 2012 is allowed. (iii) Petitioner shall carry out amendment in the plaint as prayed for in I.A. No.791 of 2012 within fourteen days from the date on which a copy of this judgment is received in the trial court. (iv) On such amendment being made, respondents shall be given opportunity to file additional written statement in answer to the amended plaint. ## **II. O.P(C) No.908 of 2013** It is made clear that if on account of any change in the relief prayed for in the suit or in the course of trial of suit on examining the Advocate Commissioner and Surveyor, learned Munsiff finds O.P(C) Nos 853 & 908 of 2013 -: 6 :- that remission of Exts.P2 and P4, report and plan are necessary to decide the issues involved in the case, Ext.P6, order (in O.P (C) No.908 of 2013) shall not stand in the way of learned MunsiffMagistrate passing appropriate orders for remission of Exts.P2 and P4, report and plan. ## **THOMAS P. JOSEPH, JUDGE.** vsv