Aggrieved by the endorsement in Ext.P3 produced by the petitioner, the petitioner moves this Court for a direction to the court below to make available the services of a Surveyor to the Commissioner to identify the property.
2. The first respondent as plaintiff has instituted O.S. 179 of 2013 for a mandatory injunction directing the second respondent, who is the tenant of the premises, to pay half rent to him. The second respondent is claimed to be running a hotel on the basis of a lease deed executed by Sirilia @ Sissamma. The claim is that after the death of the said lady, as per the Will executed by her, the petitioner and the first respondent have become the owners of the said hotel building each inheriting half share of the building and property and therefore the plaintiff is entitled to ½ the rent.
3. The petitioner resisted the suit by pointing out that the hotel is situated in the property which is exclusively owned by him and two others as per various sale deeds. Therefore, it was contended that the plaintiff has no manner of right to claim rent.
4. The essential dispute was with respect to the identity of the property in which the hotel building is situated. The first defendant moved the lower court for appointment of a Commissioner who filed an interim report pointing out that in order to identify the property he needs the assistance of a Taluk Surveyor. The Commissioner moved the court for appointment of a Taluk Surveyor and the court below rejected the request by way of the endorsement in Ext.P3.
5. Learned counsel appearing for the petitioner points out that one of the issue relates to the identity of the property in which the hotel building is situated. The petitioner has a contention that it is not covered by the Will executed by Sissamma and therefore the first respondent herein is not entitled to any share. He traced his title to the property along with two others as per the documents made mention of in the affidavit in support of the petition for issuance of a commission. It is pointed out that only on identification of the property it can be ascertained whether the building stands in the property over which the first respondent herein has any manner of right. Since the Commissioner has submitted that for identification of the property, the assistance of a Taluk Surveyor is necessary, the court below ought to have made available the services of a Taluk Surveyor and get the property identified.
6. Learned counsel appearing for the respondents on the other hand pointed out that the lease deed produced would show that there is no need to identify the property. It is pointed out that one of the assignors in the lease deed is the petitioner himself and therefore there is no need for identification of the property.
7. After having heard learned counsel on both sides and having perused the records, it is felt that the court below was not right in rejecting the prayer to provide the assistance of a Taluk Surveyor to the Commissioner to identify the property. The case of the plaintiff is that he owns half of the property by means of the Will executed by Sissamma in which the hotel building is situated and therefore he is entitled to half the rent paid by the lessee for being in possession of the building. The first defendant on the other hand would say that the hotel building is not situated in the property covered by the Will and it is in another property which is lying contiguous to the property in question.
8. It is therefore clear that the real issue involved is regarding the identity of the property in which the hotel building is situated. For that purpose, if the first defendant sought for issuance of a commission for identification of the property, he cannot be found fault with. The Commissioner has reported that the services of a Taluk Surveyor is absolutely necessary for identification of the property. Under these circumstances, it is only proper for the court below to allow the application and appoint a Taluk Surveyor to assist the Commissioner.
In the result, this Original Petition is allowed and the impugned order is set aside and the court below is directed to make available the services of a Taluk Surveyor to the Commissioner for identification of the property as desired by the first defendant and if the plaintiff has any matters to be noticed, he is free to file a work memo. The court below will make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment.
P. BHAVADASAN, JUDGE sb.