IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 WP(C).NO. 15770 OF 2010(O) ------------------------------------------ OS.359/2007 OF munsiff's court, IRINJALAKUDA .................... PETITIONER(S): ----------------------- BOSE BALAKRISHNAN @ CHANDRABOSE AGED 48 YEARS, S/O.NARAYANAN EZHUTHACHAN, CHENTHALLIPARAMBIL HOUSE, KARALAMVILLAGE & DESOM, THRISSUR DIST. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT(S): ------------------------ KRISHNAN EZHUTHACHAN, S/O. KUTTAN EZHUTHACHAN, THEKKEPATTATH HOUSE, KARALAM, IRINJALAKUDA, THRISSUR DIST. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE COMMISSION APPLICATION AND THE AFFIDAVIT FILED IN O.S. NO.359 OF 2007 OF THE MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT DATED 6.12.2009 IN I.A. NO.3836 OF 2009. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT IRINJALAKUDA IN I.A. NO.3836 OF 2009 IN O.S. NO.359 OF 2007. EXHIBIT P4 TRUE COPY OF THE COMMISSION REPORT AND SKETCH IN I.A. NO.1794 OF 2007 IN O.S. NO.359 OF 2007 DATED 24.9.2009. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.15770 of 2010 ==================================== Dated this the 25th day of November, 2010 J U D G M E N T Respondent remains absent. 2. This petition is in challenge of Ext.P3, order dated February 16, 2010 on I.A. No.3836 of 2009 in O.S. No.359 of 2007 of the court of learned Munsiff, Irinjkalakuda. That is a suit filed by petitioner for recovery of possession of plaint B schedule. On the request of petitioner, Advocate Commissioner and Surveyor inspected the property and submitted Ext.P4, report and plan. Petitioner filed I.A. No.3836 of 2009 to remit that report and plan stating that the said report and plan do not mention extent of property belonging to the petitioner in Sy.No.487/1, the property taken for road and the plan also does not show where exactly the 5 cents belonging to Chandrika is situated. It is the case of petitioner that his father owned 1.10 acres in Sy.Nos.486/6 and 487/1 and that some portion of the property comprised in Sy. No.487/1 was given for road. Five cents was assigned to one Chandrika from the property comprised in Sy.No.486/6, but according to the petitioner in the document the survey number of W.P(C) No.15770 of 2010 -: 2 :- the property assigned to Chandrika was wrongly stated as 487/1. It is the case of petitioner that he has inherited the remaining 90 cents (described as A schedule in the plaint). Respondent owns property on the western side and is said to have trespassed into plaint B schedule (18.84 cents). Grievance of petitioner is that the Advocate Commissioner has not shown portion of the property if any taken for road from the property of predecessor- in-interest of petitioner and the property sold to Chandrika is not separately shown in the plan. Learned Munsiff has dismissed the application observing that Commissioner has filed a detailed report pertaining to all the queries posed and that petitioner had not in I.A. No.1794 of 2007 (for appointment of survey commission) asked for matters stated in the petition. Learned counsel submitted that it is necessary to remit the report in the circumstances stated in I.A. No.3836 of 2009. 3. I have gone through Ext.P4, report and the sketch. Though petitioner has a contention that a portion of the property belonging to his predecessor-in-interest in Sy. No.487/1 was taken for road and that 5 cents was assigned to Chandrik from Sy. No.486/6 (though in the document of title it is wrongly stated as in Sy. No.487/1) plan attached to Ext.P4 does not show portion if any taken for road. Nor does the plan show location of W.P(C) No.15770 of 2010 -: 3 :- the 5 cents assigned to Chandrika. Having regard to the facts and circumstances of the case and in the nature of the contentions advanced I am inclined to think that these matters are to be ascertained by the Advocate Commissioner. Resultantly, Writ Petition is allowed. Exhibit P3, order dismissing I.A.No.3836 of 2009 is set aside and that application is allowed to the extent that learned Munsiff shall direct the Advocate Commissioner and Surveyor to ascertain whether any portion of property comprised in Sy. No.487/1 has been taken for formation of road and if so indicate that portion and also show location of five cents assigned to Chandrika in the plan. Surveyor may prepare a separate plan showing the above aspects and the Advocate Commissioner shall submit a report accordingly. Additional batta if any payable shall be fixed by the learned Munsiff and paid by petitioner. THOMAS P. JOSEPH, JUDGE. vsv