Raveendran and others v. Murali and Susha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940** ## **OP(C).No. 294 of 2018** **AGAINST THE ORDER/JUDGMENT IN OS 86/2017 of MUNSIFF COURT,HARIPAD** ## **PETITIONER/S:** - **1 RAVEENDRAN AGED 75 YEARS, S/O VELAYUDHAN,SAJEEV BHAVANAM, MAHADEVIKAD, KARTHIKAPPALLY,ALAPPUZHA DISTRICT.** - **2 AMBIKA AGED 62 YEARS, W/O RAVEENDRAN,SAJEEV BHAVANAM, MAHADEVIKAD, KARTHIKAPPALLY, ALAPPUZHA DISTRICT.** - **3 SAJEEV AGED 45 YEARS, S/O RAVEENDRAN,SAJEEV BHAVANAM, MAHADEVIKAD,KARTHIKAPPALLY, ALAPPUZHA DISTRICT.** - **4 SIJU AGED 40 YEARS, S/O RAVEENDRAN,SAJEEV BHAVANAM, MAHADEVIKAD,KARTHIKAPPALLY, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** ## **RESPONDENT/S:** **1 MURALI AGED 55 YEARS, S/O KARTHIKEYAN,MURALI BHAVANAM, KARTHIKAPPALLY,ALAPPUZHA DISTRICT - 673542. 2 SUSHA AGED 53 YEARS, W/O MURALI, MURALI BHAVANAM, KARTHIKAPPALLY,ALAPPUZHA DISTRICT- 673542.** **BY ADVS.** **R. RAJASEKHARAN PILLAI (B/O) SMT.SABINA JAYAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.07.2018, THE COURT ON 17.10.2018 PASSED THE FOLLOWING:** _OP(C) 294/2018_ 2 ## **JUDGMENT** This Original Petition pertains to a dispute between two neighbours with regard to boundaries separating their properties and mutual allegation of encroachment. The four petitioners herein is a family, consisting of husband, wife and their two sons. The respondents herein are their neighbours, and who are husband and wife. The parties are hereinafter referred to in accordance with their status in this petition. 2. The litigation started between the two neighbours when petitioners 1 and 2 apprehended trespass of their property on the northern side by the 1[st] respondent and accordingly Ext.P1 suit was filed as O.S.No.81/2017 before the Munsiff's Court, Harippad, for a permanent prohibitory injunction from trespassing into the plaint schedule property. 3. The 1[st] respondent, the sole defendant in Ext.P1 suit, filed Ext.P2 written statement denying the allegation of trespass. On the other hand, his contention was that it is the petitioners, who had _OP(C) 294/2018_ 3 encroached the property. Thereafter, his wife and he filed Ext.P3 suit as O.S.No.86/2017 alleging that the petitioners herein have encroached a portion of their property, which they sought to recover after fixation of boundary between the two properties. The petitioners filed Ext.P4 written statement denying any encroachment as alleged. 4. An Advocate Commissioner was appointed in petitioners' suit and Ext.P5 commission report consisting of a rough sketch of the property was filed before the Court on 10.03.2017. The respondents also sought appointment of a Commissioner in their suit and Ext.P6 report was filed on 23.03.2017. 5. Thereafter, the respondents filed I.A.No. 1639/2017 to expedite the disposal of Ext.P3 suit and the trial court allowed that application. Aggrieved that the earlier suit filed by petitioners 1 and 2 was still pending, they approached this Court by filing O.P.(C) No.3014/2017. The trial of Ext.P3 suit was stayed by interim order at Ext.P7 on 30.11.2017 and vide Ext.P8 judgment, the O.P. was disposed of with a direction to the trial court to try both the suits jointly and dispose _OP(C) 294/2018_ 4 of the same within four months, as it was submitted across the bar by the Counsel appearing for both sides that the pre-trial steps were over and the suits were ripe for trial. 6. Before commencement of the trial, the respondents had filed I.A.No.1637/2017 for appointment of a Commissioner with Surveyor's help. That application was allowed and Ext.P9 report was filed on 25.10.2017. Ext.P13 objection was filed by the petitioners on Ext.P9 report and the correctness of the re-survey plan, vis-a- vis, the old survey number was challenged, and it was contended that relevant records were not examined and verified by the Commissioner. 7. The respondents also filed Ext.P10 I.A.No.2080/2017 to extensively amend Ext.P3 plaint. The petitioner had filed Ext.P11 objection to that amendment application stating that the entire nature of the suit would stand altered by the amendment. However, vide Ext.P12 order dated 09.01.2018, Ext.P10 amendment application was allowed and the petitioners filed Ext.P19 additional written statement. _OP(C) 294/2018_ 5 8. Thereafter, the petitioners filed two applications, Ext.P14 I.A.No.129/2018 for setting aside Ext.P9 commission report and Ext.P17 I.A.No.130/2018 for appointment of a fresh Surveyor to identify the property in accordance with the old survey numbers and title deeds. Both the applications were opposed by the respondents and Ext.P15 objection was filed. After considering the objections, the learned Munsiff dismissed both the applications vide Exts.P16 and P18 orders respectively. The petitioners 1 and 2 also filed Ext.P20 application for amendment of Ext.P1 plaint. 9. Aggrieved by Exts.P16 and P18 orders refusing to set aside Ext.P9 commission report and to depute a fresh Surveyor, the petitioners are before this Court seeking relief. 10. The respondents would contend that the only intention of the petitioners after having realized that they are in possession of encroached land belonging to the respondents, they are bent upon to protract the litigation, particularly when there is a specific direction by this Court vide Ext.P8 judgment to dispose of the suits within a period of four months. _OP(C) 294/2018_ 6 11. The learned Counsel appearing for the petitioners would contend that Ext.P9 commission report does not reflect the true state of affairs and that the total extent of the property in Survey No.129/5, has been identified as only 20.50 ares in place of 22.80 ares by the Commissioner. This would apparently indicate that the measurement and identification of the properties are erroneous and needs re-examination, is the submission. The learned Counsel also submits that, letting of evidence cannot be stiffed in view of the time limit fixed for disposal of the suit. The application filed by the petitioners to examine the property again and for amendment of the plaint are therefore to be allowed for a proper adjudication of the suit. The learned Counsel relies on the latest decision of the Division Bench of this Court in _**Saibinnisha v. Abdul Vahab, 2018 (3) KHC 818 (DB)**_ , wherein it is held as thus:- _“The mere fact that the High Court has fixed a time limit for the disposal of a case does not mean that the lower court shall dispose of the case in a mechanical way. The lower court shall make every endeavour to dispose of the case within the time frame fixed by the High Court. If, for any reason, the lower court finds it unable or impossible to dispose of the case within the time limit fixed by the High Court,_ _OP(C) 294/2018_ 7 _the proper procedure is to address the High Court for extension of time for disposing the case. The fact that the High Court has fixed a time limit for the disposal of a case, by itself, is not a sufficient ground to reject the applications filed by the parties for the reason that allowing the applications would cause delay in the disposal of the case.”_ The Division Bench has relied on the decision of the Hon'ble Supreme Court in _**Bablu Kumar v. State of Bihar,**_ ## _**2015 KHC 3293 : (2015) 8 SCC 787**_ . 12. In view of the above decision, the learned Counsel for the petitioners contend that serious disputes regarding the identification of the properties and the fact of encroachment need to be resolved by appointment of a Commissioner and hence the mere fact that there is a direction by this Court to dispose of the suit within a time frame itself is not a reason to disallow the legitimate applications filed by the petitioners for setting aside the Commissioner's report and for amendment of the suit. 13. The learned Counsel for the respondents would argue that there is no need to set aside the earlier report of the Commissioner before issuing a second commission either for the very same purpose or for some _OP(C) 294/2018_ 8 other purpose. The Counsel relies on the decision of this Court in _**Francis Assissi v. Sr.Breesiya, 2017 (1) KLT 1041**_ , in support of his argument. 14. The learned Counsel appearing for both sides were heard at length. 15. The short question that arises for consideration in the suit is whether there is any encroachment of the respondents' property, which is the subject matter of Ext.P3 suit, and whether the plaintiffs in that suit are entitled to recovery of such encroached portion of property. In case there is encroachment, the property will have to be recovered and Ext.P3 suit be allowed. Otherwise, their suit has to be dismissed and the suit filed by the petitioners has to be allowed restraining the respondents from interfering with their peaceful possession of the property. 16. There is no dispute that the property has been re-surveyed and the parties are now relying on the resurvey numbers for identification of the properties. The argument of the learned Counsel for the petitioners is that the property also should be identified with respect to the old survey numbers and the title deeds, so that a _OP(C) 294/2018_ 9 correct decision could be arrived at regarding the alleged encroachment. The petitioners have in Ext.P1 plaint referred to only the re-survey No.129/5 and the extent is mentioned as 9.65 ares. The petitioners now want the entire extent in R.S.No.129/5, which according to them is 22.80 ares, be measured and identified and it is also pointed out that in the Surveyor's report the extent of that survey number is only 20.50 ares, is not correct. The learned Munsiff has observed that the R.S.No.129/5 has been further sub-divided by creation of R.S.No.129/34 and that the extent of property in both these survey numbers together would come to 22.80 Ares. The reduction in extent of R.S.No.129/5 stands explained. When the parties have both relied on the re-survey numbers to establish their respective cases, the learned Munsiff was justified in not allowing the application to identify the property in accordance with the old survey number. The petitioners' specific case in Ext.P1 is that the extent of property in their possession is 9.65 ares and they want the respondents be restrained by means of injunction from trespassing into the property. The question that arises in their suit is whether they are in _OP(C) 294/2018_ 10 possession of that extent of property and the counter question that arises in Ext.P3 suit is whether the respondents have the title to the property scheduled in Ext.P3 plaint and whether the encroachment as alleged is true. The existing Commissioner's report and the survey plan does not apparently appear to be erroneous for any reasons as pointed out by the petitioners. Setting aside a Commissioner's report on flimsy grounds and deputing another Commissioner with a Surveyor's help will not resolve any purpose as rightly pointed out by the learned Munsiff. The applications were dismissed by the learned Munsiff on merits and not for the sole purpose of disposing of the suit within the time stipulated by the High Court. I am in perfect agreement with the finding of the learned Munsiff in Exts.P16 and P18 and I find no reason, whatsoever, to interfere. The Original Petition is without any merit and the same is, therefore, dismissed. No order as to costs. ## **Sd/-** ## **ASHOK MENON** ## **JUDGE** _dkr_ _OP(C) 294/2018_ 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE PLAINT IN OS NO.81 OF 2017**| |---|---| ||**BEFORE THE MUNSIFF'S COURT, HARIPAD.**| |**EXHIBIT P2**|**TRUE COPY OF THE WRITTEN STATEMENT IN O.S**| ||**NO.81 OF 2017 BEFORE THE MUNSIFF'S COURT,**| ||**HARIPAD**| |**EXHIBIT P3**|**TRUE COPY OF THE PLAINT IN O.S NO.86 OF 2017**| ||**BEFORE THE MUNSIFF'S COURT, HARIPAD.**| |**EXHIBIT P4**|**TRUE COPY OF THE WRITTEN STATEMENT IN O.S**| ||**NO.86 OF 2017 BEFORE THE MUNSIFF'S COURT,**| ||**HARIPAD.**| |**EXHIBIT P5**|**TRUE COPY OF THE ADVOCATE COMMISSION REPORT**| ||**FILED IN OS NO.81 OF 2017 BEFORE THE**| ||**MUNSIFF'S COURT, HARIPAD.**| |**EXHIBIT P6**|**TRUE COPY OF THE ADVOCATE COMMISSION REPORT**| ||**FILED IN OS NO.86 OF 2017 BEFORE THE**| ||**MUNSIFF'S COURT, HARIPAD.**| |**EXHIBIT P7**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**25.10.2017 IN OPC 3014 OF 2017 OF THIS**| ||**COURT.`**| |**EXHIBIT P8**|**TRUE COPY OF THE JUDGMENT DATED 30.11.2017**| ||**IN OPC 3014 OF 2017 OF THIS COURT.**| |**EXHIBIT P9**|**TRUE COPY OF THE SURVEY COMMISSION REPORT**| ||**FILED IN O.S 86 OF 2017.**| |**EXHIBIT P10**|**TRUE COPY OF THE IA 2080 OF 2017 IN O.S 86**| ||**OF 2017 FILED BY RESPONDENTS.**| |**EXHIBIT P11**|**TRUE COPY OF THE OBJECTION FILED BY THE**| ||**PETITIONERS IN IA 2080 OF 2017 IN O.S 86 OF**| ||**2017.**| |**EXHIBIT P12**|**TRUE COPY OF THE ORDER DATED 09.01.2018 IN**| ||**IA 2080 OF 2017 IN O.S 86 OF 2017.**| |**EXHIBIT P13**|**TRUE COPY OF THE OBJECTION FILED BY**| ||**PETITIONERS TO EXHIBIT P9.**| _OP(C) 294/2018_ 12 |**EXHIBIT P14**|**TRUE COY OF THE IA 129 OF 2018 IN O.S 86 OF**| |---|---| ||**2017.**| |**EXHIBIT P15**|**TRUE COPY OF THE OBJECTION FILED BY**| ||**RESPONDENTS 1 AND 2 TO EXHIBIT P14**| |**EXHIBIT P16**|**TRUE COPY OF THE ORDER DATED 19.01.2018 IN**| ||**I.A 129 OF 2018 IN OS 86 OF 2017.**| |**EXHIBIT P17**|**TRUE COPY OF THE IA 130 OF 2018 IN OS 86 OF**| ||**2017.**| |**EXHIBIT P18**|**TRUE COPY OF THE ORDER DATED 19.01.2018 IN**| ||**IA 130 OF 2018 IN OS 86 OF 2017.**| |**EXHIBIT P19**|**TRUE COPY OF THE ADDITIONAL WRITTEN**| ||**STATEMENT FILED BY PETITIONERS IN O.S 86 OF**| ||**2017.**| |**EXHIBIT P20**|**TRUE COPY OF THE IA 228 OF 2018 IN OS 81 OF**| ||**2017 SEEKING TO AMEND EXHIBIT P1**| |**EXHIBIT P21**|**TRUE COPY OF THE IA 1086 OF 2018 IN OS 81 OF**| ||**2017 BEFORE THE MUNSIFF'S COURT, HARIPAD.**|