Padmini and others v. Babu @ Babukuttan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945** **OP(C) NO. 3593 OF 2017 AGAINST THE ORDER/JUDGMENT AS 8/2013 OF ASSISTANT SESSIONS COURT/SUB COURT, KARUNAGAPPALLY** ## **PETITIONERS:** 1 PADMINI, AGED 71 YEARS W/O.THE LATE SRI.THYGARAJAN, RESIDING AT KOLLARAZHIKATHU VEEDU, NADUVATHU CHERRY, THEKKUMBHAGOM VILLAGE, KARUNAGAPALLY, CHAVARA SOUTH P.O.,KOLLAM DISTRICT. 2 RANI, AGED 45 YEARS W/O.SREEJITH, RESIDING AT SREE NIKETHAN, MEENATHU CHERRY, SAKTHIKULANGARA VILLAGE, KAVANAD P.O., KOLLAM DISTRICT. 3 SMITHA AGED 42 YEARS W/O.VINOD, RESIDING AT PAROOR HOUSE, PATHIYOOR WEST CHERRY, PATHIYOOR VILLAGE, KAREELAKULANGARA P.O., ALAPPUZHA DISTRICT. 4 K.K.SUBHADRA AGED 73 YEARS W/O.THE LATE SRI.SAMBASIVAN, AGED 73 YEARS, RESIDING AT SAHITHI NIVAS, KAIKULANGARA NORTH WARD, KOLLAM WEST VILLAGE, KOLLAM DISTRICT. 5 PRASANTH KUMAR AGED 50 YEARS S/O.THE LATE SRI.SAMBASIVAN, AGED 50 YEARS,RESIDING AT SAHITHY NIVAS, KAIKULANGARA NORTH WARD,KOLLAM WEST VILLAGE, KOLLAM DISTRICT. BY ADV R.NIKHIL ## **RESPONDENTS:** 1 BABU @ BABUKUTTAN RESIDING AT KOCHU MELOOTTU VEEDU, NADUVATHU CHERRY, THEKKUMBHAGOM VILLAGE, KARUNAGAPALLY TALUK, CHAVARA SOUTH P.O.,KOLLAM DISTRICT-691584. 2 THULASEEMANI RESIDING AT KOCHU MELOOTTU VEEDU,NADUVATHU CHERRY, THEKKUMBHAGOM VILLAGE,KARUNAGAPALLY TALUK, CHAVARA **O.P.(C).No. 3593 of 2017** ..2.. SOUTH P.O.,KOLLAM DISTRICT-691584. 3 THANKAMANI RESIDING AT KOCHU MELOOTTU VEEDU,NADUVATHU CHERRY, THEKKUMBHAGOM VILLAGE,KARUNAGAPALLY TALUK, CHAVARA SOUTH P.O.,KOLLAM DISTRICT-691584. 4 AKASH RESIDING AT KOCHU MELOOTTU VEEDU,NADUVATHU CHERRY, THEKKUMBHAGOM VILLAGE,KARUNAGAPALLY TALUK, CHAVARA SOUTH P.O.,KOLLAM DISTRICT-691584. 5 VASANTHA KUMAR AGED 53 YEARS S/O.THE LATE SAMBASIVAN, RESIDING AT SAHITHI NIVAS, KAIKULANGARA NORTH WARD, KOLLAM WEST VILLAGE, KOLLAM DISTRICT. 6 JESUS KUMAR AGED 47 YEARS S/O.THE LATE SAMBASIVAN, RESIDING AT SAHITHI NIVAS, KAIKULANGARA NORTH WARD,KOLLAM WEST VILLAGE, KOLLAM DISTRICT. 7 JINARAJ KUMAR AGED 45 YEARS S/O.THE LATE SAMBASIVAN, RESIDING AT SAHITHY NIVAS, KAIKULANGARA NORTH WARD,KOLLAM WEST VILLAGE, KOLLAM DISTRICT. 8 ISWARYA SAMRUDH AGED 31 YEARS D/O.THE LATE SAMBASIVAN, AGED 31 YEARS,RESIDING AT SAHITHY NIVAS, KAIKULANGARA NORTH WARD,KOLLAM WEST VILLAGE, KOLLAM DISTRICT. 9 RAJAMMA RESIDING AT BHADRA SADANAM, MANDALAM JUNCTION, ALUMMOODU P.O., KOLLAM DISTRICT-691577. (DELETED) 10 PONNAMMA RESIDING AT ANANTHA MANDIRAM, MANDROTHURUTHU P.O., KOLLAM DISTRICT-691502. (DELETED) 11 SUBRAMANIYAN, RESIDING AT SANTHI, KALOOR P.O., KOLLAM DISTRICT-682017. (DELETED) 12 RAJENDRAN, RESIDING AT RAJADHANI, NEDIYARA P.O., ANCHAL, KOLLAM DISTRICT-691306. (DELETED) 13 SASIDHARAN, RESIDING AT MELOOTTU VEEDU, NADUVATHU CHERRY, KARUNAGAPALLY TALUK, CHAVARA SOUTH P.O., KOLLAM DISTRICT-691584. (DELETED) **O.P.(C).No. 3593 of 2017** ..3.. 14 SOBHANA, RESIDING AT AKHILABHAVANAM, KANDRAMKANI, PATTAMTHURUTHU P.O., KOLLAM DISTRICT-691601. (DELETED) 15 SOBHANA, RESIDING AT ASHIRVAD, KAIKULANGARA NORTH, KOLLAM WEST VILLAGE, KOLLAM DISTRICT-691007. (DELETED) 16 PRASANNA KUMARI RESIDING AT PRASEEDHA BHAVANAM, KIDAPRAM, PERINGALAM P.O., KOLLAM DISTRICT-690538. 17 VASANTHAKUMARI, RESIDING AT PULLAMTHARA, VILWAMANGALAM, MANDROTHURUTHU P.O., KOLLAM DISTRICT-691502. (DELETED) 18 SASANKAN, RESIDING AT MULLAVAYALIL, MANDROTHURUTHU P.O., KOLLAM DISTRICT-691502. (DELETED) 19 JAYACHANDRAN, RESIDING AT MULLAVAYALIL, MANDROTHURUTHU P.O., KOLLAM DISTRICT-691502. (DELETED) 20 BEENA, RESIDING AT MULLAVAYALIL, MANDROTHURUTHU P.O.,KOLLAM DISTRICT-691502. (DELETED) (RESPONDENTS R9 TO R20 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS VIDE ORDER DATED 13/03/2019 IN IA 1188/2018 BY ADVS. BEPIN PAUL S.DEEPAK M.P.RAMNATH P.RAJESH (KOTTAKKAL) K.J.SEBASTIAN SHALU VARGHESE S.SANDHYA M.VARGHESE VARGHESE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P.(C).No. 3593 of 2017** **==> picture [37 x 9] intentionally omitted <==** ## **J U D G M E N T** ## _**Dated this the 13[th] day of February, 2024**_ **Petitioners herein are the respondents in A.S.No.8/2013 on the files of the Sub Court, Karunagapally. They are aggrieved by Ext.P7 order, which allowed Ext.P5 application for issuance of a Commission, when the matter was ripe for hearing the appeal.** **2. Heard the learned counsel for the petitioners and the respondents 1 to 4. Other respondents were not deleted from the array of parties, on the premise that they are not contesting respondents.** **3. Learned counsel for the petitioners would submit that, the suit was one for injunction, preferred by the petitioners herein, as O.S.No.358/2009 before the Munsiff's Court, Karunagapally. In the suit, the respondents/** **O.P.(C).No. 3593 of 2017** **==> picture [37 x 9] intentionally omitted <==** **defendants preferred a counter claim for declaration of easement by prescription over counter claim D schedule pathway, as also, for an injunction. Plaint A & B schedule properties are properties of the plaintiffs. Counter claim C schedule property belongs to the defendants and counter claim D schedule is the disputed pathway. After trial, the suit was allowed and the counter claim was dismissed, challenging which two appeals were preferred before the Sub Court, Karunagapally, namely A.S.No.8/2013 and A.S. No.81/2015.** **4. The essential apprehension raised by the learned counsel for the petitioners is that, the commission application, being allowed at the time when the appeals are ripe for hearing, would ultimately lead to remand of the suit to the trial court, in which case, the plaintiffs reliefs will get stalled and delayed. Another aspect pointed out by the learned counsel is that, the** **O.P.(C).No. 3593 of 2017** **==> picture [37 x 9] intentionally omitted <==** **requirements of adducing additional evidence under Order XXXXI, Rule 27 are not met in the instant facts, since, allowing a commission application would amount to additional evidence being let in.** **5. Per contra, learned counsel for the respondent would submit that, the application for issuance of commission was made only in accord with the dictum laid down by a learned Single Judge of this Court in** _**Edakudi Raveendran @ Ravi and Others v. Lohithakshan and another**_ **[2017 (2) KLT 865]. Going by paragraph no.15 of that judgment, this Court held that, in order to grant a relief for declaration of easement by prescription, there should be a plan, having sufficient measurement showing the actual lie of the properties and existing pathway, prepared by a competent surveyor, in the absence of which a decree cannot be passed. The application being preferred in the light of the said dictum, no interference,** **O.P.(C).No. 3593 of 2017** **==> picture [37 x 9] intentionally omitted <==** **whatsoever, is warranted to Ext.P7 order, is the submission made.** **6. Having heard the learned counsel appearing on both sides, this Court cannot find any serious infirmity or illegality with respect to Ext.P7 order, warranting interference under Article 227 of the Constitution. As rightly pointed out by the learned counsel for the respondent, the application was necessitated, when the judgment in Raveendran(supra) was rendered in the year 2017, with the above referred observations as contained in paragraph no.15 of the judgment. It is only to plug such a technical snag that the application was filed. Inasmuch as, the learned Judge held that, without a plan indicating sufficient measurement of the pathway prepared by a competent surveyor, a decree cannot be passed, Ext.P5 application for issuance of commission cannot be found fault with. Nor could it be said that Ext.P7 order is flawed in any respect.** **O.P.(C).No. 3593 of 2017** **==> picture [37 x 9] intentionally omitted <==** **7. However, this Court notice that by virtue of Ext.P5 application, the respondent herein have sought to measure plaint A and B schedule properties, as also, counter claim C and D schedule properties. Having regard to the fact that, such an application has been preferred at the appellate stage and also in view of the purpose behind the dictum laid down in Raveendran(supra), this Court is of the opinion that the disputed pathway, which has been scheduled as counter claim D schedule property alone need be measured. The obvious purpose is to have clarity with respect to the lie, location and measurement regarding the pathway, so as to enable an effective decree being passed.** **8. In the circumstances, Ext.P5 application is confined to measuring counter claim D schedule pathway. However, every endeavour shall be made by the commissioner to indicate the approximate** **O.P.(C).No. 3593 of 2017** **==> picture [37 x 9] intentionally omitted <==** **location of the said pathway in plaint A and B schedule properties to the extent possible, without actual measurement of plaint A and B schedule properties in full. The probable location shall also be indicated by co-relating the same with counter claim C schedule property of the defendants as well.** **9. In order to plug the apprehension made by the learned counsel for the petitioners, this Court may indicate that, if the petitioners have no objection to the plan to be prepared by the surveyor, then every endeavour shall be made by the 1[st] appellate court, to hear and dispose of the matter, without there being a remand of the same to the trial court. However, if there is dispute with respect to the plan by either of the parties, after ascertaining the** _**prima facie**_ **merits of such objections and also when the first appellate court feels that such a remand is inevitable, such a course may be resorted. It is further clarified** **O.P.(C).No. 3593 of 2017** **==> picture [45 x 9] intentionally omitted <==** **that, in case the remand is found inevitable, the same shall be confined to the additional evidence brought in by way of the commissioner's report and plan; and not in respect of any other matter, except when the first appellate Court after hearing the matter, is of the opinion that, a remand is otherwise required in the interest of justice.** **This Original petition will stand disposed of, as above.** Sd/- **C. JAYACHANDRAN JUDGE** **TR** **O.P.(C).No. 3593 of 2017** ..11.. ## **APPENDIX OF OP(C) 3593/2017** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE COMMISSION REPORT DATED 20.04.2009 IN E.P.NO.197/07 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT, KARUNAGAPALLY. EXHIBIT P2 A TRUE COPY OF THE AWARD OF THE LOK ADALATH IN E.P.NO.193/2007 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT, KARUNAGAPALLY. EXHIBIT P3 A TRUE COPY OF THE COMMISSION REPORT DATED 23.09.2009 IN O.S.NO.358/2009 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT, KARUNAGAPALLY. EXHIBIT P4 A TRUE COPY OF THE JUDGEMENT DATED 21.01.2013 IN O.S.NO.358/2009 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT , KARUNAGAPALLY. EXHIBIT P5 A TRUE COPY OF THE I.A.NO.469 OF 2017/2013 IN A.S.NO.8/2013 ON THE FILES OF THE HON'BLE SUB COURT, KARUNAGAPALLY. EXHIBIT P6 A TRUE COPY OF OBJECTION FILED BY THE PETITIONERS IN I.A.NO.469 OF 2017/2013 IN A.S.NO.8/2013 ON THE FILES OF THE HON'BLE SUB COURT, KARUNAGAPALLY. EXHIBIT P7 A TRUE COPY OF ORDER DATED 06.12.2017 IN I.A.NO.469 OF 2017/2013 IN A.S.NO.8/2013 ON THE FILES OF THE HON'BLE SUB COURT, KARUNAGAPALLY.