IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 OP(C).No. 3358 of 2011(O) ---------------------- OS.243/2009 of SUB COURT, PATHANAMTHITTA .................. ORIGINAL PETITIONER / RESPONDENTS / DEFENDANTS : ----------------------------------------------------------------------------------- 1. S. SUJATHAN, S/O. LATE SUKUMARAN, KOTTAPPURATHU HOUSE, KOTTARKAVU, MAVELIKKARA. 2. M/S. ATLAS MINES AND GRANITES LTD., P.B.NO.39, PARK JUNCTION, MAVELIKKARA, REPRESENTED BY ITS MANAGING DIRECTOR, S. SUJATHAN, S/O. LATE SUKUMARAN, KOTTAPPURATHU HOUSE, KOTTARKAVU, MAVELIKKARA. BY ADVS. SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.NAVA VARGHESE SRI.MANU SEBASTIAN RESPONDENTS / PETITIONER-PLAINTIFF: ------------------------------------------------------------- J. ANANDAN, S/O. JANARDHANAN, KATTUMADATHIL HOUSE, PALLICKAL NADUVILE MURI, BHARANIKAVU VILLAGE, MAVELIKKARA TALUK-690541. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 3358 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN O.S.NO 243 OF 2009 ON THE FILE OF THE SUB COURT, PATHANAMTHITTA. EXT.P2 TRUE COPY OF WRITTEN STATEMENT IN O.S. NO.243 OF 2009 ON THE FILE OF THE SUB COURT, PATHANAMTHITTA. EXT.P3 TRUE COPY OF I.A. NO.944/2011 ALONG WITH AFFIDAVIT. EXT.P4 TRUE COPY OF OBJECTION. EXT.P5 TRUE COPY OF ORDER DATED 08-08-2011 IN I.A. NO.944/11. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3358 of 2011 --------------------------------------- Dated this 19th day of October, 2011 JUDGMENT Defendants in O.S.No.243 of 2009 of the Court of learned Sub Judge, Pathanamthitta are the petitioners challenging Ext.P5, order dated 08.08.2011 on I.A.No.944 of 2011. That is a suit filed by the respondent to set aside certain sale deeds allegedly executed in favour of petitioners, for a declaration that those sale deeds are not binding on the respondent, his right, title, interest and possession of the properties and for consequential injunction. Petitioners resisted the suit contending that respondent had executed the sale deeds for consideration in their favour. Respondent filed I.A.No.944 of 2011 for appointment of a commission to measure the properties with reference to the documents in question and to report on certain other matters as prayed for in Ext.P3, application. That application was resisted by petitioners on the ground that they have not disputed identity of the property and hence it is not necessary to appoint a survey commission in the way requested for in Ext.P3, application. That request was allowed by the learned Sub Judge rejecting the objection of petitioners. Ext.P5, order appointing survey O.P(C).No.3358 of 2011 -: 2 :- commission is under challenge. 2. Learned counsel has taken me through the averments in the plaint and written statement and contended that petitioners never disputed identity of the suit properties and hence it is not necessary to get the properties identified by a survey commission as ordered in Ext.P5. 3. Certainly, the argument is attractive – for, petitioners did not dispute the identity of the properties. But, that is not the purpose for which respondent has filed Ext.P3, application. To understand the purpose of Ext.P3, application it is necessary to refer to the averments in the plaint. It is seen from the plaint schedule that relief is sought with respect to 12 items of properties covered by the sale deeds assailed in the suit. In paragraph 10(h)(i) of the plaint it is stated that the boundaries and survey numbers (of the 12 items of properties) mentioned in the sale deeds are not correct and are totally against the actual facts in the locality. It is further averred that though the 12 items of properties are situated at different places, those properties are stated in the sale deeds in question as lying as a single plot having common boundaries. The further averment in the plaint is that if respondent was consulted before drafting of the 'so called sale deeds', such discrepancies would not have happened. The said errors are formidable grounds to presume that respondent O.P(C).No.3358 of 2011 -: 3 :- had no role while drafting the 'so called' sale deeds and the contents were not read over and explained to the respondent. The further averment in paragraph 10(h)(i) is that even properties taken by the respondent on lease from the Government are included in the schedule of 'so called' sale deeds and some extent of Government puramboke land are also included in the said sale deeds. Obviously, it is to prove the same and show that respondent had no role in the drafting of the sale deeds that he has applied for the issue of a survey commission. The request for survey commission is to establish the case pleaded by the respondent in the plaint and to show that in drafting of the sale deeds respondent had no role as he has pleaded in paragraph 10(h)(i) of the plaint. Viewed in that line, I do not find reason to interfere with the order by which learned Sub Judge has appointed a survey commission. This original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-