Varghese vs State Of Kerala

C.S.Dias, J

Aggrieved by Ext P6 order passed in IA No.6/2022 in OS No.348/2014 by the Court of the Munsiff, Kanjirapally, the plaintiff in the suit has filed the original petition. The respondents are the defendants.

The skeletal facts leading to Ext P6 order are; the petitioner has filed the suit against the respondents, for declaration of title over the plaint schedule property and consequential reliefs. In order to identify the plaint schedule property, the petitioner filed IA No.462/2017 (Ext P2) to appoint an Advocate Commissioner. The Advocate Commissioner had filed Ext P3 report and sketch, pursuant to the order passed in IA No.616/2018. The petitioner had filed IA No.6/2022 (Ext P4), to set aside the report and sketch. The petitioner also filed Ext P5 objection to Ext P3 report and sketch. The court below posted Ext P4 application for evidence. The Taluk Surveyor was examined. Thereafter, the court below, by the impugned Ext P6 order, has held that the application to set aside Ext P3 report and sketch will be considered along with the suit. Ext P6 is manifestly wrong and unsustainable in law. Hence, the original petition.

Heard; Sri.John Numpeli, the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents 1 and 2. Even though notice has been served on the respondents 3 to 5, there is no appearance for them.

The short point is, is there any illegality in Ext P6 order.

On an overall consideration of the pleadings and materials on record, it can be gathered that the court below by Ext P6 order, has observed as follows:

“11. I may not forget the fact that as per order in IA No.6/2022 and based on the memos filed by Advocate commissioner stating that old survey plan of road comprised in resurvey 104/1 is 275/2 and it is necessary for ascertaining the matters reported in the IA.462/2017 which was produced before this court. Advocate commissioner relied on Exts X1 to X5 plan to ascertain the road purambokku and Advocate commissioner was directed to produce those plan and marked for the preparation of I.A for better clarification the actual width and extent PWD can be ascertained and measurement is made on that aspect. So the width of the western PWD is clearly mentioned in it and based on the same the matters are ascertained. So in my opinion the IA, can be posted along with suit and after taking evidence in the suit if the width of the road assumes importance to dispose the suit. Ext.C1 series can be returned for effective adjudication in the light of decision rendered by Hon'ble High Court in 1996(1) KLT. 162. Therefore, the I.A is posted along with and since the steps are completed and suit is riped for trial. I am listing the suit in special list of December 2.12.2022. Both parties shall be present to adduce evidence.”

(sic)

On a reading of Ext P6 order extracted above, it is quite evident that the court below has not dismissed Ext P4 application filed to set aside Ext P3 report and sketch, instead has deferred its consideration after evidence is adduced by the parties and their witnesses in the suit.  I do not find any error in the course adopted by the court below or any prejudice caused to the petitioner.

If after the completion of trial, the court below, finds there is any discrepancy in Ext P3 report and sketch as alleged by the petitioner, the court below shall at that point of time, take a decision on Ext P4 application. There is no error or illegality in the course adopted by the court below leading to Ext P6 order, warranting interference by this Court under Article 227 of the Constitution of India.

With the above observation, the original petition is disposed of.