E.P. Prabha vs T. Chrispan

Ext.P6 application filed by the plaintiff in O.S.No.204/2014 before the Principal Sub Court, Thiruvananthapuram, was dismissed. Being aggrieved by

the impugned order dated 03.12.2019, the plaintiff has filed this original petition.

The suit was filed for a decree of permanent injunction as well as for a decree for constructing a compound wall made up of cement hollow bricks

on a granite foundation at a height of five feet through northern boundary separating plaint property from the property of the defendant.

In Ext.P6 application for issue of Commission, the plaintiff sought measurement of the plaint property along with counter claim schedule II that

belongs to the defendant on the basis of survey records. Along with the prayer, cost of the compound wall to be constructed, was also sought.

The defendant opposed the application contending that issue of Commission for the purposes sought was beyond the scope of suit. The court below

accepting the objection, dismissed the application. In paragraph No.5 of the order the court below noticed that in as much as the plaintiff has a definite

case that suit property is situated within the well defined boundaries and especially that the Manthirana existed on the northern side of plaint property,

it was quite unnecessary to depute an Advocate Commissioner for measuring out the property.

I heard the learned counsel for the petitioner as well as the respondent.

Learned counsel for the petitioner submits that looking at the entirety of the plaint and especially reading the amended prayer 'AA' in the suit and

the contentions of the respondent, it could be made out that the suit is basically one for demarcation and fixation of boundary and therefore the issue of

Commission to identify the northern boundary on the basis of survey records is highly essential. Learned counsel for the respondent reacting to this

submission contended that in fact there is no prayer for fixation of boundary and in as much as there existed a Manthirana on the northern side of the

suit property, canvassing a decree for fixation of boundary itself is meaningless. Learned counsel further pointed out that in order to maintain a suit for

putting up a boundary, the neighbouring landowner' property should also be scheduled in the plaint which has not been done in this case.

After hearing both sides, I am of the opinion that the contention canvassed by the learned counsel for the respondent cannot be taken to be an

absolute proposition of law applicable in all cases indiscriminately. I am satisfied that deputation of Advocate Commissioner for measurement and

identification of northern boundary of the property will not affect the right of the defendant. On the other hand, that will only facilitate a fair and final

decision of the matter in dispute between parties. For the reason above said, I am of the opinion that the impugned order is worth interfering and

cannot be sustained.

In the result, the original petition is allowed. I.A.No.1992/2019 filed by the petitioner is allowed. The court below is directed to depute an Advocate

Commissioner to note down matters set forth in I.A.No.1992/2019. It is made clear that this order will not affect the respondent's right to take

objections as to the relevancy of the plan and report when issues arising in the suit are determined by the court. Being a suit of the year 2014, the

court below is directed to dispose the same within a period of six months from the date of receipt of certified copy of this judgment.

All pending interlocutory applications are closed.