KALA S v. BIJU

The plaintiff in O.S. No.179/2011 of the Munsiff Court, Punalur is the petitioner herein. He is aggrieved by Ext.P8 order, which allowed Ext.P6 commission application. According to the petitioner, the short compass of controversy is with respect to prayer No.3 in Ext.P6 application, which is beyond the scope of the reliefs claimed for in the counter claim. It was also contended that relief No.3 sought for is not strictly in accord with the mandate in Ext.P4 first appellate judgment and Ext.P5 judgment of this Court in the second appeal.

2. Heard the learned counsel appearing for the petitioner and the learned counsel for the respondents.

3. Learned counsel for the respondents submits that Ext.P4 judgment categorically directs in O.P.(C) NO.2707 OF 2023 4 paragraph No.12, that the measurement of the entire 26 cents of land is required to identify the plaint schedule property and the counter claim schedule property. There is also an observation that, if there is reduction in the extent of plaint schedule property, the same can also be reported, on which basis the properties of the parties can be identified. It is the specific submission of the learned counsel for the respondent that the said observation has not been dislodged in Ext.P5 judgment of this Court dismissing the second appeal. In the circumstances, there is nothing wrong in prayer No.3 to Ext.P6 commission application, is the submission made by the learned counsel for the petitioner.

4. This was seriously opposed by the learned counsel for the petitioner. Learned counsel would, however, clarify that the petitioner is not against measuring the entire 26 cents of land for the purpose O.P.(C) NO.2707 OF 2023 5 of locating the plaint and counter claim schedule properties.

5. Having heard the learned counsel appearing on both sides, this Court is in the opinion that the Original Petition can be disposed of sustaining Ext.P8 order, however with a clarification. As rightly contended by the learned counsel for the respondent, there is a peremptory direction/observation in Ext.P4 judgment of the learned Sub Judge that the measurement of the entire extent of 26 cents of land, which allegedly belonged to one Kesavan, is required to ascertain and identify the plaint and counter claim schedule properties. The reduction in the extent, if any, was also directed to be reported, so as to have a correct identification and location of the scheduled properties. It is true that these directions as contained in Ext.P4 judgment has not been interfered by this Court in Ext.P5 judgment. That being so, there O.P.(C) NO.2707 OF 2023 6 cannot be any controversy/dispute with respect to measurement of the entire extent of 26 cents, to which learned counsel for the petitioner also has no objection. However, point No.3 which is sought to be ascertained in Ext.P6 commission application is the fulcrum of dispute and is therefore extracted here below: പ്പട്ടിക 4 സെ(cid:2)ൻ്റും അതിന് വടക്കുള്ള വാദി …………………… 3. പത്രിക കല പേ(cid:18)ർക്കുള്ള 14346-ാ(cid:8)ം ഉൾപ്പെപ്പപ്പെട 18 സെ(cid:2)ന്റ് 826/2006-ാ(cid:8)ം 26 നമ്പർ തണ്ടപേപ്പരും പ്ര കാരമുള്ള 14 പ്പെ(cid:28)ന്റ് സ്ഥലമല്ലാതെ(cid:12) അതിർത്തിയ്ക്കുളിൽ വിവരിയ്ക്കുന്ന പ്രകാരമുള്ള പ്പെ(cid:28)ൻ്റ് വ(cid:28)്‌തുപേവാ ഉപേണ്ടാ എന്നു പ്പെ’യ്ത് (cid:18)രിപേ(ാധിച്ച് റിക്കാർഡു പ്പെ’യ്ത് പ്ലാൻ നമ്പർ പ്രമാണത്തിൽ പ്പെ(cid:28)ന്റ് വ(cid:28)്‌തുപേവാ 22 സർതെ(cid:22) (cid:12)യ്യാറാക്കണം. …………………………………………….

6. This Court is in the opinion that the measurement in terms of point No.3, as extracted above, is not strictly required. Nor does such a measurement emanates from Ext.P4 judgment of the learned Sub Judge, or for that matter, Ext.P5 judgment of this Court. Both the judgments only directed O.P.(C) NO.2707 OF 2023 7 measurement of the entire 26 cents of the land for proper identification of the plaint and counter claim schedule properties. In the circumstances, the requirements will be satisfied, if the entire 26 cents of land is measured out, so as to identify the plaint and counter claim schedule properties; focus and thrust being on the identification of the plaint and counter claim schedule properties. Ext.P8 order will stand modified to the limited extent indicated above. With this observation, this Original Petition will stand disposed of. BR Sd/- C. JAYACHANDRAN JUDGE O.P.(C) NO.2707 OF 2023 8 APPENDIX OF OP(C) 2707/2023 PETITIONER’S EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 TRUE COPY OF THE AMENDED PLAINT WITH DOCUMENTS IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR TRUE COPY OF THE WRITTEN STATEMENT DATED 03-11-2011 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR TRUE COPY OF THE JUDGMENT DATED 14.03.2018 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR TRUE COPY OF THE JUDGMENT DATED 21-12-2019 IN AS NO.46/2018 OF SUB COURT, PUNALUR TRUE COPY OF THE JUDGMENT DATED 23-08-2022 IN FAO (RO) NO. 7/2021 TRUE COPY OF THE I.A. 1/2021 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR DATED 18.01.2021 TRUE COPY OF THE OBJECTION DATED 06-03-2023 IN I.A. 1/2021 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR TRUE COPY OF THE ORDER DATED 04-10-2023 IN I.A. 1/2021 IN OS NO.179/2011 OF MUNSIFF COURT, PUNALUR RESPONDENT’S EXHIBITS: NIL