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2022 DIGILAW 132 (KER)

George S/o Mathai v. Nidhin B. Parapattu

2022-02-09

A.BADHARUDEEN

body2022
JUDGMENT : A. BADHARUDEEN, J. 1. Is there any rigid rule that a Commissioner with assistance of Surveyor to measure the plaint schedule property shall not be appointed in any contingency, in a Suit for simple injunction? 2. This Original Petition (Civil) has been filed under Article 227 of the Constitution of India. The petitioner herein is the plaintiff in O.S. No. 148/2018 pending before the Munsiff Court, Perumbavoor. He is aggrieved in the matter of dismissal of I.A. No. 2268/2019 filed by the petitioner, who is the plaintiff in the above Suit, to appoint a Survey Commission to measure out the properties of the plaintiff as well as the defendants on the basis of the title deed to locate the same specifically. 3. As per order dated 29.06.2020, the learned Munsiff dismissed the application mainly on the ground that in a Suit for simple injunction, the question to be decided was whether the plaintiff had possession over the plaint schedule property and in such a Suit the commission report already filed along with rough sketch would be sufficient to decide the dispute between the parties. 4. Heard both sides in detail. 5. The learned counsel for the petitioner argued that though the Suit is one for simple injunction, in the written statement filed by the defendants, the nature and lie of the plaint schedule properties were disputed and, therefore, it is highly necessary, in the interest of justice, in order to protect the right of the plaintiff, to measure the property to get a survey plan by locating the lie of the property with clarity. 6. Per contra, it is submitted by the learned counsel for the respondents that in a Suit for simple injunction there is no necessity to appoint a survey commission. Unreported decisions in Chinnamma and Another vs. Antony and Another, W.P. (C) No. 23089/2009 and Thai Valappil Narayanan vs. Kulangara Shanthan, O.P. (C) No. 491/2010, were placed in this regard. In the decision in Thai Valappil Narayanan's case while dealing with a Suit for prohibitory injunction against demolition of boundary and trespass, a learned Single Judge of this Court observed as under: “2. I am unable to agree with that argument of learned counsel. It is seen that the suit is merely for a decree for prohibitory injunction against respondent demolishing boundaries, trespassing into it or constructing a new road along the suit property. I am unable to agree with that argument of learned counsel. It is seen that the suit is merely for a decree for prohibitory injunction against respondent demolishing boundaries, trespassing into it or constructing a new road along the suit property. Court fee for the said purpose is paid under Section 27(c) of the Court Fees and Suits Valuation Act. In a suit for injunction except O.P. (C) No. 491/2010 for the purpose of proving possession if absolutely necessary, issue regarding title is irrelevant. Hence it is not necessary in a suit for injunction of this nature to raise an issue regarding title. Advocate Commissioner has inspected the property and submitted reports. It is true that property of respondent is situated on the west of the suit property. But, there again there is no dispute regarding the boundary in between. Advocate Commissioner has reported about a way through the suit property. It is in the above circumstances that the learned Munsiff has observed that no question of survey commission is involved and what is required to be proved is only whether respondent has right of access through the suit property. May be, being a suit for injunction petitioner has to provide that property is situated within defined boundaries. But here there is no dispute regarding boundaries. On the facts of the case a survey commission is not required. There is no reason to interfere with the impugned order.” 7. In another decision in Chinnamma and Another vs. Antony and Another, W.P. (C) No. 23089/2009, the learned Single Judge has, while dealing with an application for appointment of a Commissioner with assistance of a Surveyor which was dismissed by the court below, held as under: “In a suit for injunction also, where the description of the suit property is challenged by the defendants setting forth a contention that the allegations raised in the plaint with respect to the plaint property and the claim thereunder are not correct, it is necessary to determine and identify the property. Identification of the suit property is essential to grant a decree of injunction. Without such identification, if any decree of injunction is passed, it will give rise to further complications if at all the decree is violated. Ext.P4 order is liable to be set aside, I do so. Identification of the suit property is essential to grant a decree of injunction. Without such identification, if any decree of injunction is passed, it will give rise to further complications if at all the decree is violated. Ext.P4 order is liable to be set aside, I do so. Learned Munsiff is directed to pass orders afresh on Ext.P3 application taking note of the observations made above and in accordance with law. Writ Petition is disposed as indicated above.” 8. Thus the law emerges is that appointment of a Survey Commission is not necessary in a case for simple injunction, where the property is identified with certainty based on the local commission report, though the other side disputes the identity of the property in the written statement. However, there is no rigid rule that a commissioner with the assistance of a surveyor never be appointed in a Suit for simple injunction. Legal position is emphatically clear that when the identity of the plaint schedule items, found by the Commissioner on the basis of local inspection report lacks certainty to identify the plaint schedule items and to pass an effective decree and when the other side seriously disputes the identity with specific mention that the description is incorrect and misleading, in such cases, appointment of a survey commission to locate plaint schedule items with the aid of survey plan is the justified order. In such contingency, a commission with the assistance of a Surveyor to be allowed, even in a Suit filed for simple injunction. But such a course of action shall be exercised in cases of exceptional nature like the one in hand. 9. Having held so, it is necessary to peruse the location commission report and the rough sketch along with the description of the plaint schedule properties in this case, where the defendants filed counter-claim to remove quarry waste from the counter claim schedule property. There are four items of property in the plaint schedule. The rough sketch would show that the same is quite insufficient to exactly identify the plaint schedule items. Thus identification of the plaint schedule items based on a survey commission report and plan is absolutely necessary. Apart from that, perusal of the written statement filed by the defendants herein along with counter claim having 7 pages, produced as Ext.P2 herein, also is essential. Thus identification of the plaint schedule items based on a survey commission report and plan is absolutely necessary. Apart from that, perusal of the written statement filed by the defendants herein along with counter claim having 7 pages, produced as Ext.P2 herein, also is essential. As per the averments in Para-3 of the written statement, the identity of the plaint schedule items was zealously disputed. The said portion is extracted hereunder: “The plaintiff does not have exclusive possession over plaint A schedule Item No. 1 property. It is also not stated as to how the plaintiff obtained plaint A schedule Item No. 2 property. The description of plaint A schedule Item Nos. 1 and 2 properties is misleading. The description of plaint C schedule way is also incorrect and therefore, the location of plaint A schedule item No. 2 property mentioned with reference to the plaint C schedule way is incorrect and hence denied. It is respectfully submitted that the existence of a way through the property of the plaintiff is mentioned in Document No. 1440/1979 of the SRO, Perumbavoor. The plaintiff suppressed the said fact and filed the suit alleging that these defendants are trying to cut open a way through his property.” Even a cursory reading of the above text would convince that the defendants herein challenged the identity of the plaint schedule properties. In the above circumstances, the plaintiff filed an application for appointment of a survey commission to locate the plaint schedule items with certainty and in such a case the learned Munsiff went wrong in dismissing the application. 10. Therefore, the order impugned is set aside and I.A. No. 2268 of 2019 in O.S. No. 148/2018 on the file of Munsiff Court, Perumbavoor is allowed. The learned Munsiff is directed to appoint the Advocate Commissioner with assistance of a Surveyor and fix the bata appropriately within a period of 15 days from the date of production of a copy of this judgment. Thereafter, the learned Munsiff shall ensure filing of commission report with survey plan within a period of 45 days therefrom so as to dispose of the case at the earliest. 11. The Original Petition is allowed accordingly.