ST.GEORGE FORANE CHURCH Vs. JOSEPH GEORGE

JUDGEMENT

(1.) THE petitioner is the plaintiff in O.S.No.170 of 2012 on the file of the Court of the Munsiff of Alappuzha. The respondents are the defendants therein. The suit instituted by the petitioner is one for a permanent prohibitory injunction restraining defendants 1 to 8 from constructing a building by encroaching into the plaint schedule property or from committing acts of waste or mischief therein or from obstructing the plaintiff's possession and enjoyment of the plaint schedule property. The petitioner has also prayed for a declaration that the permission granted by the 9th defendant is void and is liable to be set aside.

(2.) IN plaint in O.S.No.170 of 2012, a copy of which is on record as Ext.P1, the plaintiff has averred that the plaint schedule property having an extent of 3 cents, situate in Sy.No.370/8 of Edathua Village, Ambalappuzha Taluk, Alappuzha District belongs to and is the possession and enjoyment of the plaintiff church, that defendants 1 to 8 are having lands on the eastern side of the plaint schedule property, which they obtained from the plaintiff church, as per Sale Deed No.1584 of 1972 dated 11.8.1972, that in the said sale deed, the extent of the property is mentioned as 5.300 cents, that after purchase, the predecessor of the defendants constructed five shop rooms therein, that with the intention of snatching the property of the plaintiff, the defendants demolished the entire shop rooms for constructing a multi -storied building and the foundation for the proposed building is constructed in such a manner that it encroaches into the plaint schedule property. It is alleged that defendants 1 to 8 obtained permission from the 9th defendant Edathua Grama Panchayat by suppressing material facts and that the permission given by the Grama Panchayat is ab initio void and is not binding on the plaintiff's or the plaint schedule property. Along with the plaint, the petitioner filed I.A.No.868 of 2012 for an interim order of injunction restraining defendants 1 to 8 from making any construction encroaching upon the plaint schedule property. On that application, an ad -interim order of injunction was passed on 2.3.2012. It is not in dispute that after hearing learned counsel on both sides, the interim order was vacated and the application for injunction was dismissed. Aggrieved thereby, the petitioner/plaintiff has filed C.M.A.No.14 of 2013 in the Court of the District Judge of Alappuzha and the said appeal is pending.

(3.) THE petitioner did not take steps to apply for the appointment of the Advocate Commissioner to inspect the plaint schedule property or the properties of the defendants and submit a plan and report. On the other hand, the respondents submitted an application for the appointment of an Advocate Commissioner who after inspecting the plaint schedule property with the assistance of the Taluk Surveyor, Kuttanadu Taluk, filed Ext.P7 report dated 10.9.2012. In that report, he stated that the land covered by the sale deed No.1584 of 1972, SRO Ambalappuzha, which is marked as plot ABCDEFGHA in the plan appended to the report has an extent of 5.300 cents. He also reported that going by the measurements, the plaint schedule property is a part of the property covered by sale deed No.1584 of 1972. The petitioner thereupon filed I.A.No.2984 of 2012 (Ext.P9) wherein they prayed that the report and plan submitted by the Advocate Commissioner may be set aside. The principal contention raised in the affidavit filed in support of the application is that the Advocate Commissioner has not correctly identified and demarcated the property covered by sale deed No.1584 of 1972 and therefore, the report and plan are liable to be set aside. Defendants 1 to 8 resisted the application by filing written objections. They contended that in the absence of a plea from the plaintiff that the recitals in the sale deed relied on by the defendants are not correct no exception can be taken to the report and plan submitted by the Advocate Commissioner. In the trial court, the Advocate Commissioner was examined as CW1 and the Taluk Surveyor was examined as CW2. The trial court after considering the rival contentions and the evidence oral and documentary available in the case, held that the report and plan submitted by the Advocate Commissioner do not suffer from any infirmity. The court below accordingly dismissed I.A.No.2984 of 2012 by Ext.P12 order passed on 8.3.2013. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India.