Radhamani v. Taluk Legal Services Committee, Chittur and Nanu Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 1[ST] DAY OF AUGUST 2023 / 10TH SRAVANA, 1945** **WP(C) NO. 7587 OF 2022** **PETITIONER:** RADHAMANI AGED 55 YEARS W/O MADHUMOHANAN, OMANA NILAYAM, MANNATHUKAVU, THATHAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 102 BY ADVS. RAJESH SIVARAMANKUTTY ARUL MURALIDHARAN VIJINA K. **RESPONDENTS:** 1 TALUK LEGAL SERVICES COMMITTEE CHITTUR, REPRESENTED BY SECRETARY, CHITTUR, PALAKKAD DISTRICT , PIN 678 101 2 NANU NAIR AGED 78 YEARS S/O. K KRISHNAN NAIR, KORANATHU VEEDU, MANNATHUKAVU, THATHAMANGALAM VILLAGE , CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 101 BY ADVS. BINOY VASUDEVAN R.MANIKANTAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **W.P.(C).No.7587 of 2022 2** ## **VIJU ABRAHAM,J** ## **-----------------------** **W.P.(C).No.7587 of 2022 ------------------------------------Dated this the 1[st] day of August, 2023** ## **JUDGMENT** The above writ petition is filed seeking to quash Exts.P2, P3 and P5. Petitioner submitted a petition before the 1[st] respondent as PL No.209 of 2012 seeking to fix the boundary between the property of the petitioner and the 2[nd] respondent and to put up barbed wire fence/boundary wall. Ext.P1 petition was considered by the 1[st] respondent and Ext.P2 award dated 8.12.2022 was passed. 2. The grievance of the petitioner is that the petitioner was given to understand that an Advocate Commissioner would measure the properties of the respective parties and on such commission report being acceptable to both parties, an award will be passed to fix the boundary of the parties. The case of the petitioner is that contrary to the above, the aspect of acceptability of the ## **W.P.(C).No.7587 of 2022 3** commission report to both parties was omitted and the award only recorded that both parties agreed to measure their properties on the basis of their title deeds and survey records and fix the boundary separating their properties and further that after fixing the boundary separating the respective properties of the petitioner and 2[nd] respondent, the 2[nd] respondent agrees to permit the petitioner to put up fence on the said boundary and further that on measurement of respective properties as above, if any encroachment over the puramboke land is found, both parties agree to surrender the same. Further as per Ext.P2 an Advocate Commissioner was appointed to supervise the measurement and the Taluk Surveyor, Chittur was appointed to measure the property. Petitioner submits that pursuant to Ext.P2 the Advocate Commissioner measured the property and filed Ext.P3 report and since there was dispute regarding the measurement, both parties filed objection and Ext.P4 is the objection filed by the ## **W.P.(C).No.7587 of 2022 4** 2[nd] respondent. On the strength of the same, the petitioner would contend that since both parties have objected to Ext.P3 commission report and plan the same is not acceptable to either parties. Ext.P3 commissioner's report cannot be the basis to act upon Ext.P2 award and therefore, Ext.P2 award is no longer an award in terms of Section 21 of the Legal Services Authorities Act, 1987. Petitioner on the strength of Section 21 of the said Act would submit that to constitute an award in terms of Section 21 it is imperative that there should be a compromise or settlement that is arrived at between the parties and capable for execution as well. The 2[nd] respondent has now filed Ext.P5 Execution Petition as E.P No.139/2013. It is also stated that petitioner's husband has filed a suit for declaration and injunction with respect to the properties against the 2[nd] respondent. Even though a writ petition was filed by the husband of the petitioner challenging Ext.P2 award, the same was dismissed as withdrawn as per Ext.P6 judgment ## **W.P.(C).No.7587 of 2022 5** dated 2.3.2022, leaving open the contention of the parties. 3. A detailed counter affidavit has been filed by the 2[nd] respondent in which it is specifically contended that the petitioner's contention that the property would be measured by the Advocate commissioner first and if the measurement is acceptable by both parties then an award could be passed is incorrect and without any basis. It is further submitted that an award has been passed on the basis of the consent of the parties and hence no challenge could be arisen against the same thereafter. The 2[nd] respondent would further contend that in the commission report it is evident that the petitioner's husband had encroached into the property of the 2[nd] respondent and constructed two bathrooms. On finding that the award cannot be executed on the strength of the commission report an Execution Petition was filed as EP No.139 of 2013 before the Munsiff's Court, Chittur seeking to execute the award whereas the ## **W.P.(C).No.7587 of 2022 6** petitioner's husband has preferred a suit as OS No.529 of 2014 before the Munsiff's Court, Palakkad seeking a decree for perpetual injunction. Since the Court did not grant any order of injunction he rushed to this Court and preferred the earlier writ petition as WP(C) No.34199 of 2014. Petitioner submits that Ext.P2 award was rendered during 2014 and the petitioner has challenged the same after a gap of 8 years, which cannot be accepted. 4. I have heard the contentions on both sides. 5. The thrust of the contention raised by the petitioner is that he was made to understand that the Advocate Commissioner would measure the properties to the respective parties and on such commission report being acceptable to both parties an award to be passed to fix the boundary of the parties and contrary to the same the aspect of acceptability of the Commission report by both parties was omitted and Ext.P2 award was passed. But a reading of Ext.P2 award would reveal that ## **W.P.(C).No.7587 of 2022 7** both the parties had agreed to measure their properties on the basis of the title deeds and survey records and fix the boundary separating their properties and that after fixing the boundary separating the respective properties of the petitioner and the respondents, the respondents had agreed to permit the petitioner to put up the fence on the said boundary. It is also agreed by the parties that on measurement of respective properties as above, if any encroachment over the puramboke land is found, both parties will surrender the same. So on a reading of Ext.P2 it is revealed that whatever has been agreed to by the parties, ie., the petitioner and the 2[nd] respondent is that the property could be measured on the basis of title deed and survey records and the boundary could be fixed and after fixing the boundary separating the respective properties, the respondents have agreed to permit the petitioner to put up fence on the said boundary, and it is for the said purpose the award ## **W.P.(C).No.7587 of 2022 8** also directed the appointment of a commissioner as well as the Taluk Surveyor to take follow up action on the basis of the agreement between the parties as reflected in the award. The learned counsel for the petitioner would rely on the judgment in _**Vijaya K. v. Muraleedharan K.G. (2023 (4) KHC 403(DB)**_ to contend that the award should have the characters of a decree to enforce it and if the award is blank and only refers to the obligation without referring to the nature of the obligation to be performed, it become inexecutable. I am not able to accept the said contentions of the petitioner that the terms of the award or the terms of the settlement is not clear and is not executable. The terms of the agreement is very clear, it is only that after the commissioner had visited the site and submitted a report objections were raised. 6. The award was passed as early as on 2014 and that soon after the award was passed, a suit was filed by the husband of the petitioner as OS No. ## **W.P.(C).No.7587 of 2022 9** 529 of 2014 seeking for a decree of perpetual injunction and only when no order of injunction was granted earlier Writ Petition No.34199 of 2014 was filed which was ultimately dismissed as withdrawn as per Ext.P6 judgment dated 2.3.2022 permitting withdrawal of the writ petition leaving open all contentions of the parties. The 2[nd] respondent, to execute the terms of the decree, has filed an execution petition as EP No.139 of 2013 before the Munsiff's Court, Chittur, which is now pending consideration. Reliance is placed on the judgment in _**Prasannakumari v. Sudhakaran (2012 (1) KLT 701)**_ wherein this Court while considering a case, where an ex parte decree was passed for fixation of boundary, but no survey commission was taken out at the time of trial since the decree was passed ex parte held that a commissioner could be appointed at the execution stage to identify the plaint schedule property and rejection of the application for appointment of the commissioner on the ground that the plaintiff will have taken out ## **W.P.(C).No.7587 of 2022 10** a survey commission at trial was found to be wrong. As stated above, going through Ext.P2 award the terms of the settlement is clear and executable and the contention of the petitioner in this regard is only to be rejected. In view of the same, I find no reason to interfere with Ext.P2 award passed as early as on 8.12.2012. The above writ petition is accordingly, dismissed. sd/- **VIJU ABRAHAM, JUDGE** pm ## **W.P.(C).No.7587 of 2022 11** ## **APPENDIX OF WP(C) 7587/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITION NUMBERED AS P.L 209/2012 FILED BEFORE THE 1ST RESPONDENT BY THE WIFE OF THE PETITIONER. Exhibit P2 TRUE COPY OF THE AWARD DT NIL PASSED SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 16-02-2013 Exhibit P3 TRUE COPY OF THE REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 16-2-2013 Exhibit P4 TRUE COPY OF THE OBJECTIONS FILED BY THE 2ND RESPONDENT Exhibit P5 TRUE COPY OF THE EXECUTION PETITION NUMBERED AS E.P NO. 139/2013 IN P.L.P NO. 209/2012 ON THE FILE OF THE MUNSIFF'S COURT, CHITTUR Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 2-32022 IN W.P9C0NO. 34199/2014 PASSED BY THIS HON'BLE COURT. RESPONDENT EXHIBITS Exhibit R2 A TRUE COPY OF THE PLAINT IN O.S.NO.529/2014 (ORIGINAL NO.O.S. NO.55/2013 OF MUNSIFF COURT CHITTUR) ON THE FILE OF THE MUNSIFF'S COURT, PALAKKAD.