SHAJI v. BABU

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 04th 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.

Heard the learned counsel for the petitioner, respondents 1 to 3 and the fourth respondent.

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.

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.

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.

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.

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 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 TRUE COPY OF THE PLAINT IN O.S. NO.128 OF 2017 BEFORE MUNSIFF COURT, PARAVUR TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS 1 TO 3 IN O.S. NO. 128 OF 2017 BEFORE MUNSIFF COURT, PARAVUR TRUE COPY OF THE COMMISSION REPORT ALONG WITH ROUGH SKETCH DATED 06-03- 2017 IN I.A NO. 613 OF 2017 IN O.S. NO. 128 OF 2017 BEFORE MUNSIFF COURT, PARAVUR 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 TRUE COPY OF THE OBJECTION IN I.A.NO. 2/2023 IN O.S. NO. 128/2017 BEFORE MUNSIFF COURT, PARAVUR 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