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THE NAIR SERVICE SOCIETY versus ABDULLAKUTTY, S/O.AMASSERY KUNHEETHU

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THE NAIR SERVICE SOCIETY v. ABDULLAKUTTY, S/O.AMASSERY KUNHEETHU - WP(C) No. 745 of 2007(L) [2007] RD-KL 523 (8 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 745 of 2007(L)

1. THE NAIR SERVICE SOCIETY,
... Petitioner

Vs

1. ABDULLAKUTTY, S/O.AMASSERY KUNHEETHU,
... Respondent

2. SALAHUDEEN AYUB,

3. DIVAKARAN,

4. ABDUL JABBAR,

5. ABDUL REHIMAN FAISIBI,

6. MRS.AYISHAKUTTY, W/O.ABDULLAKUTTY,

7. BAVA, S/O. ABDULLAKUTTY,

8. RAFEEK, S/O. ABDULLAKUTTY,

9. RASHEED, S/O. ABDULLAKUTTY,

10. MALU, D/O.ABDULLAKUTTY,

For Petitioner :SRI.P.GOPAL

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :08/01/2007

O R D E R

M.SASIDHARAN NAMBIAR,J.

W.P.(C)NO.745 OF 2007

DATED THIS THE 8th DAY OF JANUARY, 2007



JUDGMENT

Petitioner is plaintiff in O.S.77/2000 on the file of Sub Court, Ottapalam. Respondents 1 to 4 are defendants. The suit was filed for recovery of possession. As first respondent died, his legal heirs were impleaded as respondents 6 to 10 in this petition. Petitioner is challenging Ext.P5 order, passed by Sub Judge in I.A.2477/06 dismissing his application filed to remit the report submitted by the Commissioner. I.A.2477/06 was filed contending that the report and plan submitted by Commissioner are insufficient to resolve the dispute involved in the suit and therefore report and plan are to be remitted back to Commissioner to submit a further report with the assistance Superintendent of Survey.

2. Learned Counsel appearing for petitioner was heard.

3. Arguments of learned Counsel appearing for petitioner was that learned Sub Judge did not properly appreciate the contentions of petitioner and in the nature of the suit, a proper identification of the property is a must and on the basis of the report and plan submitted by the Commissioner, it is not possible to resolve the dispute and in such circumstances, petitioner should have been permitted to get the W.P.(c)745/07 2 properties identified with the assistance of Superintendent of Survey and hence Ext.P5 order is to be quashed.

4. Ext.P5 is an order in an interlocutory application. Learned Sub Judge considered the question whether the report is to be remitted back to Commissioner or not. There is no infirmity in that order. Petitioner is entitled to challenge that order along with judgment, if the suit is decided against the petitioner. Petitioner is also entitled to adduce evidence in support of the objections raised to the report and plan including on the identification of the property. In such circumstances, I find no reason to interfere with Ext.P5 order, in exercise of the extraordinary jurisdiction of this Court under Article 227 of Constitution of India. Writ petition is dismissed.

M.SASIDHARAN NAMBIAR,JUDGE

Acd W.P.(c)745/07 3


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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