IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 OP(C).NO. 2844 OF 2011(O) ---------------------------------------- OS.287/2005 OF ADDL.M.C.,IRINJALAKUDA PETITIONER: -------------------- THE PUBLIC COMPANY,PUDUKKAD,PUDUKKAD 680 301.REPRESENTED BY ITS MANAGING PARTNER, SRI.PAUL RESIDING AT, CHENGALOOR VILLAGE, CHENGALOOR DESOM,MUKUNDAPURAM TALUK, 680 312. BY ADV. SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN RESPONDENT(S): -------------------------- 1. ROBERT,S/O.CHOONDAKKATTIL DEVASSY, PUDUKKAD DESOM, THORAVU VILLAGE, MUKUNDAPURAM TALUK 680 312. 2. JOSHI,S/O.CHOONDAKKATTIL DEVASSY, PUDUKKAD DESOM, THORAVU VILLAGE, MUKUNDAPURAM TALUK 680 312. 3. ALPHONSA,W/O.KUDALI PAUL,NENMANIKKARA DESOM,NENMANIKKARA VILLAGE,MUKUNDAPURAM TALUK 680312. 4. RAPPAI,S/O.KUDALI ANTONY, PUDUKKAD DESOM, THORAVU VILLAGE, MUKUNDAPURAM TALUK 680 312. ADV. SRI.K.G.BALASUBRAMANIAN FOR R1 & 2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) No.2844 of 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 THE PHOTOCOPY OF THE AMENDED PLAINT IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P2 THE PHOTOCOPY OF THE WRITTEN STATEMENT DATED 24.05.2005 JOINTLY FILED BY DEFENDANTS 1 AND 2 IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P3 THE PHOTOCOPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 14.12.2005 JOINTLY FILED BY DEFENDANTS 1 AND 2 IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P4 THE PHOTOCOPY OF THE WRITTEN STATEMENT DATED 24.5.2005 FILED ON BEHALF OF THE THIRD DEFENDANT IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P5 THE PHOTOCOPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 14.12.2005 FILED ON BEHALF OF THE THIRD DEFENDANT IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P6 THE PHOTOCOPY OF THE INTERLOCUTORY APPLICATION DATED 14.8.2006 FILED BY THE PLAINTIFFS AS I.A. NO.2766 OF 2006 IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P7 THE PHOTOCOPY OF THE REPORT DATED 04.07.2007 FILED BY THE ADVOCATE COMMISSIONER IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA ALONG WITH THE ROUGH SKETCH PREPARED BY THE ADVOCATE COMMISSIONER AND THE SURVEY SKETCH PREPARED BY THE TALUK SURVYOR. EXHIBIT P8 THE PHOTOCOPY OF THE OBJECTION DATED 4.12.2007 FILED ON BEHALF OF THE THIRD DEFENDANT TO THE COMMISSION REPORT AND PLANS DATED 4.7.2007 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. O.P(C) No.2844 of 2011 EXHIBIT P9 THE PHOTOCOPY OF THE INTERLOCUTORY APPLICATION DATED 14.12.2007 FILED ON BEHALF OF THE THIRD DEFENDANT AS I.A. NO.4085 OF 2007 IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P10 THE PHOTOCOPY OF THE DEPOSITION OF THE TALUK SURVEYOR WHO WAS EXAMINED AS P.W.2 IN I.A. NO.4085 OF 2007 IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P11 THE PHOTOCOPY OF THE DEPOSITION OF THE TALUK SURVEYOR WHO WAS EXAMINED AS P.W.2 IN I.A. NO.4085 OF 2007 IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P12 THE PHOTOCOPY OF THE ORDER DATED 30.06.2011 IN I.A. NO.4085 OF 2007 IN O.S. NO.287 OF 2005 ON TH FILES OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2844 of 2011 ==================================== Dated this the 01st day of September, 2011 J U D G M E N T Respondents 3 and 4 are served by special messenger but there is no response. Respondents 1 and 2 appear through counsel. 2. This Original Petition is filed by the third defendant in O.S. No.287 of 2005 of the court of learned Additional Munsiff, Irinjalakuda. That is a suit filed by respondents 1 and 2 for fixation of western boundary of plaint A schedule and for prohibitory injunction to restrain petitioner and respondents 3 and 4/defendants 1 and 2 from obstructing its right of access through plaint B schedule way. In Ext.P1, plaint it is prayed that A schedule is to be measured with reference to the title deeds and survey records and its boundary, with the property (of petitioner) on the west is also to be fixed. There is also a prayer for injunction. Respondents 1 and 2 filed Ext.P6, application to appoint a survey commission and that was allowed. Exhibit P7 is the copy of report and plan submitted by the Advocate Commissioner. Along with the same, a rough sketch of the property is also produced. Petitioner, dissatisfied with the report, plan and rough sketch filed Ext.P8, O.P(C) No.2844 of 2011 -: 2 :- objection and P9, application to set aside the same. On that application, the Advocate Commissioner and Surveyor were examined as P.Ws.1 and 2. Exhibit P9, application was dismissed as per Ext.P12, order which is under challenge. 3. Leaned counsel for petitioner submits that the plan prepared by the Surveyor is worthless since it does not give necessary datas. It is pointed out by leaned counsel that though petitioner is entitled to 8 cents on the west of plaint A schedule, the Advocate Commissioner has shown an excess of 0.54 sq. links in the possession of petitioner. It is pointed out by learned counsel that the excess land allegedly in the possession of petitioner is shown to be on the west of boundary of plaint A schedule as per documents of title in which case that should have formed part of entitlement of petitioner. It is also pointed out that the eastern boundary line of the 8 cents as per documents is not given in the plan produced with Ext.P7, report. A further objection that learned counsel raised is that though according to Advocate Commissioner, respondents 1 and 2 are also in possession of excess land (that excess land is also shown in green shade) it is shown on west of boundary of plaint A schedule as per documents of title. According to the learned counsel O.P(C) No.2844 of 2011 -: 3 :- question of respondents 1 and 2 being in possession of such excess land within the boundary as per their documents of title do not arise. Thus there is confusion worse confounded presented by the plan, it is argued. 4. Learned counsel for respondents 1 and 2 pointed out that Ext.P12, order would show that learned Munsiff has taken into account all the relevant aspects of the matter presented by the Advocate Commissioner and the surveyor in Ext.P7, report and plan. It is also pointed out from the sketch that on the western boundary of plaint A schedule there is a physical boundary and that also is a matter which the trial court has to look into. As such it is submitted that it is not necessary to interfere with Ext.P12, order. 5. It is not disputed that plaint A schedule originally belonged to the petitioner which petitioner assigned in favour of respondents 3 and 4 as per document No.3946 of 1994. Respondents 3 and 4 assigned the said property in favour of another person as per document No.4388 of 1996 who in turn assigned in favour of respondents 1 and 2 as per document No.121 of 2005. 6. It is seen from the plan produced along with Ext.P7, O.P(C) No.2844 of 2011 -: 4 :- report that according to the Advocate Commissioner and the Surveyor, petitioner and respondents 1 and 2 are in possession of excess land. But the manner in which such excess land is shown in the plan appears to be a bit confusing in that the excess land allegedly in the possession of respondents 1 and 2 is shown to be towards east of plot E and west of boundary line as per document of title of respondents 1 and 2, shown in red colour. It is not clear how within the boundary line of respondents 1 and 2 as per document of title they happened to be in possession of excess land. Similar is the position with reference to the petitioner also. Petitioner's excess land is shown to be on the west of boundary line of plaint A schedule as per the assignment deed in favour of respondents 1 and 2. Moreover, eastern boundary line of the 8 cents to which petitioner is entitled as per the title deed is also not shown specifically in the plan. These aspects require clarification from the Commissioner and the Surveyor before parties go for trial since otherwise in the course of trial these contradictions might arise requiring Advocate Commissioner and Surveyor again to inspect the property and submit report and plan. It is appropriate that at this stage itself all contradictions are clarified through the Commissioner and Surveyor. In that view O.P(C) No.2844 of 2011 -: 5 :- of the matter I am inclined to interfere with Ext.P12, order but to the limited extent. Resultantly, Original Petition is allowed. Exhibit P12, order is set aside. Learned Munsiff is directed to get clarification from the Advocate Commissioner and Surveyor, if necessary by their examination as to how the excess land were shown to be within the boundary lines of properties as per the document of title and which exactly is the eastern boundary line of the 8 cents to which petitioner is entitled, as per document of title. Learned Munsiff shall also seek clarification as to the (alleged) existence of fixed boundary on the western side of plaint A schedule. This exercise can be done in the course of trial itself. THOMAS P. JOSEPH, JUDGE. vsv