IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 OP(C).NO. 2190 OF 2011(O) --------------------------------------- I.A. NO. 744 OF 2011 IN OS.1/2009 OF MUNSIFF COURT, HARIPAD .................... PETITIONERS-DEFENDANTS 1 AND 2 ------------------------------------------------------ 1. SHYAMALA KUMARIU THANKACHI, W/O. SREKANDAN NAIR, SREESAILAM VEEDU, THULAMPARAMBU NADUVATHU MURI, HARIPAD, ALAPPUZHA DISTRICT. 2. SREEKANDAN NAIR, S/O. MADHAVAN NAIR, SREESAILAM VEEDU, THULAMPARAMBU NADUVATHU MURI, HARIPAD, ALAPPUZHA DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): PLAINTIFF ------------------------------------------ LEENA, D/O. GOPALAKRISHNA PILLAI, SANKARABHARANAM, THULAMPARAMBU NADUVATHU MURI, HARIPPAD, ALAPPUZHA DISTRICT, REPRESENTED BY SRI. GOPALAKRISHNA PILLAI. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2190 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.1 OF 2009 O0F MUNSIFF'S COURT, HARIPAD. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT OF THE PETITIONERS. EXHIBIT P3 TRUE COPY OF THE MAHAZAR PREPARED BY THE ADVOCATE COMMISSIONER. EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 9.12.2010 FILED BY THE PETITIONERS. EXHIBIT P5 TRUE COPY OF I.A. NO.61 OF 2011 IN O.S. NO.1 OF 2009 FILED BY THE PETITIONERS. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 23.2.2011 IN I.A. NO.61 OF 2011 IN O.S. NO.1 OF 2009. EXHIBIT P7 TRUE COPY OF I.A. NO.74 OF 2011 DATED 15.6.2011. EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 15.6.2011 FILED BY THE PETITIONERS. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 23.6.2011 OF THE HONOURABLE MUNSIFF'S COURT, HARIPAD IN I.A. NO.744 OF 2011. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2190 of 2011 -------------------------------------- Dated this the 11th day of July, 2011. JUDGMENT Petitioners who are defendants 1 and 2 in O.S.No.1 of 2009 of the court of learned Munsiff, Harippad aggrieved by Ext.P9, order dated 23.06.2011 on I.A.No.744 of 2011 refusing to appoint an Advocate Commissioner to submit a report and plan in the way petitioners desired. Respondent filed the suit for fixation of boundary and for mandatory injunction. According to the respondent, she purchased plaint A schedule in the year, 2004 and later, petitioner encroached into a portion of plaint A schedule on the western side (which portion is plaint B schedule). Petitioners claimed that they have purchased 8.87 Ares in the year, 1975 and denied the allegation of encroachment or demolition of western boundary of property of the respondent. On the request of respondent, the Advocate Commissioner, with the assistance of a Surveyor measured the properties and marked the same as A, B and C in the plan, plot C being the property belonging to the petitioners. Measurement was done as per resurvey plan. Petitioner preferred Ext.P4, objection to Ext.P3, report contending that measurement ought to have been based on the old survey plan and raising certain other points as well but ultimately requesting learned Munsiff to consider the said objection as well while considering Ext.P3, report and plan. There was no request to set aside that report and plan or appoint a fresh Commission for measurement of the properties based on the old survey plan as later claimed by OP(C) No.2190/2011 2 petitioners vide Ext.P5, I.A.No.61 of 2011. That application was dismissed by learned Munsiff for the reason that the grounds stated therein were not raised in Ext.P4, objection and in Ext.P4, there was no request to set aside the report and plan. Learned Munsiff also pointed out that without setting aside the earlier report and plan there could be no fresh commission for the same matter. Ext.P6 is the order to that effect passed by the learned Munsiff on 23.02.2011. Then came Ext.P7, application (I.A.No.744 of 2011) to set aside Ext.P3, report. Learned Munsiff observed that the contentions raised in Ext.P7 were not raised in Ext.P4, objection to Ext.P3, report and plan, earlier. Ext.P8 is the copy of work memo filed in I.A.No.744 of 2011 filed by petitioners to appoint an Advocate Commissioner with assistance of a Surveyor to measure plaint A and C schedule properties as per the resurvey plan. That application was dismissed by learned Munsiff vide Ext.P9, order dated 23.06.2011 again holding that without setting aside the earlier report and plan a fresh commission cannot be issued. That order is under challenge. Learned counsel submits that properties have to be measured afresh based on the resurvey plan since there are mistakes in Ext.P3, report and plan. It is also submitted by learned counsel that the girth of trees standing in the disputed property is to be ascertained. 2. It is pertinent to note that petitioners have not sought any relief in the written statement except a dismissal of the suit. Merely because Ext.P3, report and plan are not in accordance with the wishes of petitioners they cannot OP(C) No.2190/2011 3 ask for appointment of another commissioner to measure the properties based on resurvey plan. Every inadequacy if at all there be, cannot be challenged in exercise of the power under Article 227 of the Constitution. It is open to the petitioners to raise all their contentions regarding acceptability of Ext.P3, report and plan in the course of trial. Since that opportunity is available to the petitioner I do not find reason to interfere with the order. But, I make it clear that it is open to the petitioner to raise all their contentions regarding acceptability of Ext.P3, report and plan as per the contentions they have raised in Ext.P4, objection at the time of trial. With the above observation, this Original Petition is closed. THOMAS P.JOSEPH, Judge. cks