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High Court of KeralaOP(C)/4193/2012dismissed

Bhama v. Prakashan

2015-10-28Honourable Mr. Justice K.Abraham Mathew4 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW WEDNESDAY, THE 28TH DAY OF OCTOBER 2015/6TH KARTHIKA, 1937 OP(C).No. 4193 of 2012 (O) --------------------------- AGAINST THE ORDER/JUDGMENT IN OS 200/2012 OF PRINCIPAL MUNSIFF COURT, KOCHI --------------------------- PETITIONER(S):

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1. BHAMA AGED 55 YEARS W/O. LATE JNANA SUNDARAN, ANAMURI PARAMBIL PANAMBU KADU, ERNAKULAM.

2. GANESHAN AGED 35 YEARS S/O. LATE JNANA SUNDARAN, ANAMURI PARAMBIL PANAMBU KADU, ERNAKULAM.

BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.S.VAIDYANATHAN SRI.P.PRIJITH RESPONDENT(S):

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1. PRAKASHAN, AGED 72 YEARS S/O. VELU, THIRUNALATH PARAMBU, PALLURUTHY ERNAKULAM-682 006.

2. MANIKUTTAN , AGED 35 YEARS S/O. PRAKASAN, THIRUNALATH PARAMBU, PALLURUTHY ERNAKULAM-682 006.

R2 BY ADV. SRI.VARGHESE PARAMBIL R2 BY ADV. SRI.ALBERT JOSEPH THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C).No. 4193 of 2012 (O) APPENDIX PETITIONER(S) EXHIBITS :

EXHIBIT.P1 : TRUE COPY OF PLAINT AS OS NO.200/2012 FILED BY THE RESPONDENTS BEFORE THE PRINCIPAL MUNSIFF COURT, KOCHI. EXHIBIT.P2 : TRUE COPY OF WRITTEN STATEMENT WITH COUNTER CLAIM IN OS NO.200/2012 FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT, KOCHI.

EXHIBIT.P3 : TRUE COPY OF DOCUMENT NO.712/1982 OF KOCHI SRO. EXHIBIT.P4 : TRUE COPY OF REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA NO.1538/2012 IN OS NO.200/2012. EXHIBIT.P5 : TRUE COPY OF ORDER IN IA NO.1539/2012 IN OS NO.200 OF THE PRINCIPAL MUNSIFF COURT, KOCHI.

EXHIBIT.P6 : TRUE COPY OF IA NO.2478(a)/2012, DTD.3.11.2012. EXHIBIT.P7 : TRUE COPY OF THE ORDER IN IA NO.2478(1)/2012 DTD.19.11.2012. RESPONDENT'S EXHIBITS:

NIL ---------------------------------------- R.AV //TRUE COPY// PA TO JUDGE

K.ABRAHAM MATHEW, J ------------------------------------ O.P.(C)NO.4193 OF 2012 ----------------------------------- Dated this the 28th day of October, 2015

J U D G M E N T

------------------ Petitioners are the defendants in OS.200 of 2012 of Principal Munsiff Court, Kochi. The respondents filed the suit for declaration of easement over the plaint B schedule pathway, which forms part of the petitioners' property. The petitioners have made a counter claim. The relief prayed for is a perpetual injunction. They also filed Ext.P6 application to appoint a commissioner to measure the property on the basis of title deed and survey plan. By Ext.P7 order the learned Munsiff has dismissed it. 2.

Heard.

3.

The learned Musniff dismissed the application on the ground that title of the property is not in question. The ground on which the counter claim is made is that the respondents objected to the measurement of the properties by the petitioners. I have no doubt that the prayer to measure the property of the petitioners on the basis of title deed and survey plan is unnecessary. Issues have so far not been framed. If to decide the issues

O.P.(C)NO.4193 OF 2012 arising on the pleadings measurement of the properties on the basis of title deed and survey plan is necessary the learned Munsiff may appoint a commissioner on the application of either of the parties or suo motu. In the result, this O.P is dismissed with the above observation.

sd/- K. ABRAHAM MATHEW JUDGE R.AV //True Copy// PA to Judge