SHAJI v. BABU, SHEELA, BIBIN and SINOJ

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2024-01-04
Court Decision / Holding: This original petition fails and the same will therefore stand dismissed.
Final Disposition: Original Petition dismissed

Parties to the Case

Appellants / Petitioners

SHAJI AGED 70 YEARS S/O AYYAPPAN KUNJI, NEELIMATHARA HOUSE, MALYANKARA, MOOTHAKUNNAM, PARAVUR, ERNAKULAM, PIN – 683516

Respondents

BABU
SHEELA
BIBIN
SINOJ

Legal Representation & Advocates

Counsels for Petitioners

• P.K.SREEVALSAKRISHNAN
• K.R.PRATHISH
• S.RENJITH S.UNNIKRISHNAN (NELLAD)
• JOEL CHALAMANA KRISHNA DAS

Counsels for Respondents

• GEORGE SEBASTIAN
• SRI. P. VISHNU PRASAD

Case Synopsis & Summary

High Court of Kerala, OP(C) No. 2271 of 2023, heard by Justice C. Jayachandran, concerned a challenge to the Munsiff, North Paravur’s, order in I.A. No. 2/2023 in O.S. No. 128/2017, which declined to appoint a Survey Commissioner. The petitioner, Shaji, filed this original petition under Article 227 seeking interference with the Munsiff’s decision, arguing that although the suit is for injunction simpliciter, there are boundary disputes affecting the plaint schedule property. The plaint and the Ext. P3 Commission Report indicate that while there is a boundary between the plaintiff’s property and the defendants’ land, the boundaries are not precisely demarcated and a portion of the boundary wall has collapsed. Ext. P4 IA for appointment of a survey was filed, and petitioner relied on a prior Kerala case (George v. Nithin Parappattu) to contend that a survey commission can be ordered in an injunction suit. Respondents counter that Ext. P3 establishes clear boundaries and that the suit seeks injunctive relief only; there is no amendment seeking boundary fixation, and the Munsiff’s order is proper. The High Court found no illegality in Ext. P6; while noting the boundary dispute, it held the suit for injunction simpliciter does not warrant a survey commission. Consequently, the petition was dismissed under Article 227.

Provisions of Law Cited

Article 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that despite the suit for injunction simpliciter, there is a material denial in the written statement about the identity of the plaint schedule property and its boundaries. Ext.P3 (Commission Report) notes that a portion of the disputed boundary abuts the defendants’ land, but there is no precise demarcation. Ext.P4 IA sought appointment of a Survey Commissioner to measure and demarcate the boundary so as to determine the exact southern boundary of the plaint schedule property. The petitioner relies on George v. Nithin Parappattu (2022(2) KLT 200) arguing there is no rigid rule against issuing a survey in an injunction suit. It is contended that injunctive relief would be effective only after boundary identification and preventing trespass and waste on the southern side. The petitioner seeks Article 227 interference to set aside Ext.P6 and permit the survey for proper adjudication of the boundary.

Contentions of Respondents

The respondents contend that Ext.P3’s findings indicate distinct boundaries; the suit is for injunction simpliciter, and there is no necessity to fix boundaries. The Munsiff correctly declined to appoint a survey commissioner. The written statement does not challenge boundary identity; permitting a survey would convert the suit into a boundary-dispute. Interference under Article 227 is unwarranted where there is no illegality or perversity in Ext.P6, and the relief sought does not require boundary fixation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
George v. Nithin Parappattu	2022(2) KLT 200	Mentioned Only	Cited by petitioner to support the possibility of appointing a survey in an injunction suit; court did not rely on this authority in its decision.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945 OP(C) NO. 2271 OF 2023** **AGAINST THE ORDER IN I.A. NO. 2/2023 IN OS 128/2017 OF MUNSIFF COURT, NORTH PARAVUR** ## **PETITIONER/PLAINTIFF NO. 1:** **SHAJI AGED 70 YEARS S/O AYYAPPAN KUNJI, NEELIMATHARA HOUSE, MALYANKARA, MOOTHAKUNNAM, PARAVUR, ERNAKULAM, PIN – 683516** **BY ADVS. P.K.SREEVALSAKRISHNAN K.R.PRATHISH S.RENJITH S.UNNIKRISHNAN (NELLAD) JOEL CHALAMANA KRISHNA DAS** ## **RESPONDENTS/DEFENDANTS NO. 1 TO 3 & PLAINTIFF NO. 2:** **1 BABU AGED 63 YEARS S/O VELAYUDHAN, KOZHIKKAL HOUSE, MALYANKARA, MOOTHAKUNNAM, PARAVUR, ERNAKULAM, PIN – 683516** **2 SHEELA AGED 57 YEARS W/O BABU KOZHIKKAL HOUSE, MALYANKARA, MOOTHAKUNNAM, PARAVUR, ERNAKULAM, PIN – 683516** **O.P.(C) No.2271 of 2023** ## **- 2 -** **3 BIBIN AGED 40 YEARS S/O BABU KOZHIKKAL HOUSE, MALYANKARA, MOOTHAKUNNAM, PARAVUR, ERNAKULAM, PIN – 683516** **4 SINOJ AGED 44 YEARS S/O SHAJI NEELIMATHARA, MALYANKARA, MOOTHAKUNNAM, PARAVUR, ERNAKULAM, PIN – 683516** **R1 TO R3 BY ADV.SRI. GEORGE SEBASTIAN R4 BY ADV. SRI. P.VISHNU PRASAD** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.(C) No.2271 of 2023** **- 3 -** ## **JUDGMENT** ## **Dated, this the 04[th] JANUARY, 2024** **The first plaintiff preferred the above original petition aggrieved by Ext.P6 order of the learned Munsiff, North Paravur in I.A.No.2 of 2023 in O.S.No.128 of 2017, which dismissed an application for issuance of a survey commission, on the premise that suit is one for injunction simpliciter.** **2. Heard the learned counsel for the petitioner, respondents 1 to 3 and the fourth respondent.** **3. Learned counsel for the petitioner submits that though the suit is one for injunction simpliciter, there is a clear denial in the written statement that the scheduled property is not located within well defined boundaries, as claimed in the plaint schedule. Besides, there is a reference in Ext.P3 Commission Report that a portion of the disputed southern boundary is** **O.P.(C) No.2271 of 2023** **- 4 -** **lying contiguous to the property of the defendants, without there being any specific demarcating boundary. In such circumstances, a survey commission is absolutely necessary and accordingly, Ext.P4 application was filed. Learned counsel also placed reliance upon a judgment of this Court in George v. Nithin Parappattu [2022(2) KLT 200], to contend that there is no rigid rule that a survey commission shall not be permitted in a suit for simple injunction. According to the learned counsel for the petitioner, Ext.P6 order is flawed in law, warranting interference from this Court under Article 227 of the Constitution.** **4. These submissions were seriously refuted by the learned counsel for respondents 1 to 3, pointing out that the findings in Ext.P3 report is not as contended for by the counsel for the petitioner. Instead, it only reiterates that there is clear cut boundaries separating the** ## **O.P.(C) No.2271 of 2023** **- 5 -** **plaintiffs' property from the defendants' property.** **5. Having heard the learned counsel appearing for the respective parties, this Court finds no illegality or infirmity with respect to the impugned Ext.P6 order. It is relevant to note that the suit is one for injunction simpliciter, the cause of action being the draining of cow dung and urine from a cattle shed at the defendants' property, which is located on the southern side of the plaintiffs' property. It is true that injunction from trespass is also sought for, along with one restraining committing waste therein.** **6. Primarily, this Court is of the opinion that** - **a general, vague denial in the written statement** - **to the effect that it is not true to claim that** - **the plaint schedule property is lying within well defined boundaries - cannot be taken synonymous to disputing the lie and nature of a** **O.P.(C) No.2271 of 2023** **- 6 -** **property, especially with respect to the identity of its boundaries. Similarly, a perusal of Ext.P3 report with reference to point No. 4 would only indicate that the plaint schedule property and the defendants' property are lying separately, but with a difference that a portion of the said boundary wall has collapsed. However, the Commissioner categorically states towards the end of the paragraph that the properties are lying separately, with distinct boundaries.** **7. This Court also note that, based on the contentions in the written statement, or for that matter, the finding in Ext.P3, the plaintiffs have not chosen to amend the relief to one for fixation of boundaries. The plaintiffs remain contended by the existing relief of injunction simpliciter, in which case, as rightly found by the learned Munsiff, the issuance of the survey commission to measure out the properties for the purpose of identifying the southern boundary of** ## **O.P.(C) No.2271 of 2023** **- 7 -** **the plaint schedule property is not** _**per se**_ **warranted** _**.**_ **This Court is exercising jurisdiction under Article 227 of the Constitution of India, which is supervisory in nature. Therefore, an interference to an order passed by a subordinate court is not justified, unless this Court finds that the order in question is illegal, infirm or perverse.** **This original petition fails and the same will therefore stand dismissed.** **Sd/-** ## **C.JAYACHANDRAN, JUDGE** DCS ## **O.P.(C) No.2271 of 2023** ## **- 8 -** ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE PLAINT IN O.S. NO.128 OF 2017 BEFORE MUNSIFF COURT, PARAVUR** - **EXHIBIT P2** **TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS 1 TO 3 IN O.S. NO. 128 OF 2017 BEFORE MUNSIFF COURT, PARAVUR** ## **EXHIBIT P3** **TRUE COPY OF THE COMMISSION REPORT ALONG WITH ROUGH SKETCH DATED 06-032017 IN I.A NO. 613 OF 2017 IN O.S. NO. 128 OF 2017 BEFORE MUNSIFF COURT, PARAVUR** **EXHIBIT P4** **TRUE COPY OF THE SURVEY COMMISSION APPLICATION FILED BY THE PETITIONER AS I.A. NO. 2/2023 IN O.S. 128/2017 BEFORE MUNSIFF COURT, PARAVUR** - **EXHIBIT P5** **TRUE COPY OF THE OBJECTION IN I.A.NO. 2/2023 IN O.S. NO. 128/2017 BEFORE MUNSIFF COURT, PARAVUR** **EXHIBIT P6** **TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT PARAVUR IN I.A.NO. 2/2023 IN O.S 128/2017 DATED 23.09.2023**