Mohanan vs Shaji @ Babu, Molly Anirudhan, Baby and Vishwambharan

P.N. Ravindran, J.—The petitioner is the second defendant in O.S. No. 243 of 2011 on the file of the Court of the Subordinate Judge of Kochi. Respondents 1 to 3 are the plaintiffs and the fourth respondent is the first defendant therein. The suit instituted by respondents 1 to 3 is for partition of the plaint schedule property into three equal shares and allotment of one such share to them. The plaintiffs are the children of late Mony, the only sister of the defendants. Upon receipt of summons, the second defendant entered appearance and filed Ext. P2 written statement dated 23.5.2012. He contended that his mother Dakshayani to whom the property belonged, passed away on 7.9.1993, that the suit is filed 18 years after her death, that he is in absolute possession and enjoyment of 5 cents out of the plaint schedule property, that he has constructed a residential building openly, peacefully and uninterruptedly with intention to create hostile ownership and with the clear intention of ousting the plaintiffs and their mother from the said portion of the land and that he has perfected title over 5 cents out of the plaint schedule property and the residential building therein. After the suit stood listed for trial, the second defendant filed I.A. No. 1556 of 2013 (Ext. P3) wherein he prayed for the appointment of an Advocate Commissioner to measure and demarcate 5 cents out of the plaint schedule property stated to be in his absolute possession and enjoyment and to prepare a sketch. He also sought an order directing the Advocate Commissioner to report about the compound wall constructed on all four sides of the property stated to be in his possession, the nature of the gate erected therein, the residential house therein and to show in the sketch the exact location and measurement of the residential building constructed by him. The said application was considered and dismissed by order passed on 15.11.2013 and on that day, the case was adjourned to 19.11.2013 for trial. In this original petition filed under Article 227 of the Constitution of India, the petitioner prays for an order directing the Court of the Subordinate Judge of Kochi to issue a carbon copy/certified copy of the order passed on 15.11.2013 on I.A. No. 1556 of 2013 in O.S. No. 243 of 2011 forth with.

When the original petition came up for hearing today, Sri. K.R. Vinod, learned counsel appearing for the petitioner submitted that as the petitioner has raised a plea that he has perfected title over 5 cents of the plaint schedule property, the burden to prove the said fact and also on the factum of ouster is on him and therefore, the petitioner was constrained to file an application seeking the appointment of an Advocate Commissioner to substantiate the said plea. The learned counsel contended that if before the petitioner is in a position to challenge the order dismissing I.A. No. 1556 of 2013 in this Court in appropriate proceedings, the trial of the suit is proceeded with the petitioner will be put to serious prejudice. The learned counsel for the petitioner submitted that in such circumstances the original petition may be disposed of with a direction to the trial court to issue a certified copy/carbon copy of the order passed on 15.11.2013 on I.A. No. 1556 of 2013 in O.S. No. 243 of 2011 and to adjourn the trial of the suit by a short period of one week so as to enable the petitioner to challenge the said order in other appropriate proceedings.

It is evident from the averments in Ext. P2 written statement filed on 23.5.2012 that the petitioner has claimed title over 5 cents of the plaint schedule property by adverse possession and limitation. The petitioner did not however apply immediately thereafter for the appointment of an Advocate Commissioner to report about the matters referred to in the application which now stands dismissed. Instead, he waited for one year and five months after the written statement was filed before seeking the appointment of an Advocate Commissioner. Such an application was filed only after the suit was included in the list. Nothing prevented the petitioner from filing such an application along with the written statement or at least immediately thereafter. Such being the situation as the petitioner alone is to be blamed for not taking steps to file an application for the appointment of an Advocate Commissioner in time, I am of the opinion that the only relief that can be granted in the instant original petition is to direct the trial court to issue to the petitioner, if applied for, a certified copy/carbon copy of the order passed on 15.11.2013 on I.A. No. 1556 of 2013 in O.S. No. 243 of 2011. Though the learned counsel appearing for the petitioner sought a stay of the trial of the suit for a short period after the copy is issued, no such relief is prayed for in the instant original petition. Having regard to the conduct of the petitioner, I see no reason why this Court should grant such a relief.

I accordingly dispose of the original petition with a direction to the Court of the Subordinate Judge of Kochi to issue to the learned counsel appearing for the second defendant in O.S. No. 243 of 2011, certified copy of the order passed on 15.11.2013 on I.A. No. 1556 of 2013 within two days from today.

Registry to communicate a copy of this order.