KAIKKANDI THANOOJA Vs. ASHOKAN C.K.

JUDGEMENT

(1.) The main prayer in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India is as follows :

(2.) Heard Sri. P.U. Shailajan, learned counsel appearing for the petitioner/defendant and Sri. Shaji Thomas, learned counsel appearing for the respondent/plaintiff.

(3.) The petitioner is the defendant in O.S. No. 424 of 2013 on the file of the Additional Munsiff Court, Kannur, filed by the respondent herein (plaintiff). The suit is for fixation of boundary of plaint A schedule property touching plaint B schedule property and recovery of possession of plaint A schedule property and also for permanent prohibitory injunction against the defendant. Exhibits-P1 and P2 are the copies of the plaint and written statements respectively and Exhibit-P3 is the Commission Report. The petitioner/defendant had filed Exhibit-P6 I.A. No. 4574 of 2014 in O.S. No. 424 of 2013 to remit the Commission Report by contending that the Commissioner has not reported that the existence of a septic tank in the defendant's property and its age. At the same time in Exhibit-P3 Commission Report, the said alleged portion of the defendant's property where the septic tank situates is now shown as part of plaint A schedule property. It is specifically contended that apart from this there is no boundary to separate plaint A schedule property from the properties on its eastern side. So it was prayed to measure the eastern side properties and to fix eastern side boundary of plaint A schedule property and this was not done by the Commissioner. The Munsiff Court has dismissed Exhibit-P4 application to remit the Commission Report as per the impugned Exhibit-P6 order and that at the same time, the Court below has allowed an amendment application filed as I.A. No. 6797 of 2016 (application to amend the plaint) as per Exhibit-P9 order. It is thus contended that Exhibits-P6 and P9 orders are illegal and are liable to be interfered with. On a consideration of the impugned Exhibit-P6 order, it was seen that the respondent/plaintiff has taken up the specific contention that there is no necessity to ascertain the boundary line of Ramani and Karthiyayani (whose properties are situated on the eastern side of the plaint A schedule property). From a reading of the impugned order, it is seen that the properties of Ramani and Karthiyayani (who are not parties to the suit) is on the eastern boundary of the plaint A schedule property belonging to the plaintiff. The respondent/plaintiff has taken a specific contention before the court below as reflected in paragraph 5 of Exhibit-P6 that the said boundary of Ramani and Karthiyayani and the plaint A schedule property need not be ascertained as there is a clear demarcating boundary in between these properties and there is no necessity to ascertain the said boundary line for fixing the boundary between the plaint A and plaint B schedule properties. The plaint B schedule property (defendant's property) is situated on the western side of plaint A schedule property. However, on a reading of Exhibit-P3 Commission Report, it is seen that there is no mention in the said Commission Report that there is a clear demarcating boundary in between the properties of Remani and Karthiyani and plaint A schedule property as contended by the respondent which is reflected in paragraph 5 of Exhibit-P6 order. Further reasonings of the court below in issuing Exhibit-P6 order appears to be on the premise that the above-said factual contention raised by the respondent/plaintiff as reflected in paragraph-5 of the impugned Exhibit-P6 order is correct. In view of these aspects, this Court is of the view that interest of justice would be advanced by remitting the matter to the court below for consideration afresh.