IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 OP(C).NO. 3067 OF 2011(O) --------------------------------------- OS.584/2010 OF MUNSIFF COURT, CHALAKUDY .................... PETITIONER/3RD DEFENDANT: --------------------------------------------- MURALIDHARAN.N.G., AGED 51 YEARS, S/O.LATE GOVINDAN, RESIDING AT PONMANI HOUSE, HOUSE NO.VIII/383, PARAVOOTHARA, PARAVUR VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.P.V.PAULSON RESPONDENT(S): PLAINTIFF: ------------------------------------------ SANKUNNY, AGED 78 YEARS, S/O.LATE KANNAPPAN, VELLAPPILLY HOUSE, POOLANI, MELOOR VILLAGE, MELOOR-680 311, THRISSUR DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.3067 OF 2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1: COPY OF THE PLAINT IN OS.NO.584/2010 BEFORE THE MUNISIFF COURT, CHALAKUDY. EXHIBIT P2: THE TRUE COPY OF THE SALE DEED NO.4441/79 OF SRO CHALAKUDY. EXHIBIT P3: CERTIFIED COPY OF THE WRITTEN STASTEMENT FILED BY THE DEFENDANTS IN OS.584/2010. EXHIBIT P4: TRUE PHOTOCOPY OF THE EXPARTE-COMMISSION REPORT DATED IN OS.584/2010. EXHIBIT P5: TRUE COPY OF THE 2ND COMMISSION REPORT DATED 3/3/2011 FILED BY THE ADVOCATE COMMISSIONER IN OS.584/2010. EXHIBIT P6: CERTIFIED COPY OF THE IA.NO.1189/2011 IN OS.584/2010. EXHIBIT P7: CERTIFIED COPY OF THE ORDER DATED 3/9/2011 IN IA.1189/2011 OF THE MUNISIFF COURT CHALAKUDY IN OS.584/2010. RESPONDENTS' EXHIBITS : NIL THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3067 of 2011 ==================================== Dated this the 23rd day of September, 2011 J U D G M E N T Third defendant in O.S. No.584 of 2010 of the court of learned Munsiff, Chalakkudy is the petitioner. That is a suit filed by the respondent for a decree for prohibitory injunction against petitioner and other defendants trespassing into plaint A schedule property and committing waste therein. A schedule property belongs to the respondent. Plaint B schedule is a way, according to the respondent. Petitioner claimed that respondent reduced the width of plaint B schedule way from 3.5 koles to 3 koles and annexed the said portion to the plaint A schedule. Petitioner therefore wanted the properties to be measured with the assistance of a surveyor and filed Ext.P6 application for that purpose. That application was dismissed by the learned Munsiff as per Ext.P7, order which is under challenge in this proceeding. 2. Learned counsel submitted that in the nature of contentions raised by petitioner it is necessary to identify plaint A and B schedules with reference to documents of title. It is further submitted that petitioner has filed a separate suit for fixation of O.P(C) No.3067 of 2011 -: 2 :- boundary and for mandatory injunction to remove the encroachment (allegedly) made by the respondent. Dismissal of the application filed by petitioner in the present suit will affect the right of petitioner to move appropriate application in the said suit as well, it is contended. 3. In this proceeding I am concerned only whether learned Munsiff was right in dismissing Ext.P6, application which is confined to O.S. No.584 of 2010. There, it is not disputed that petitioner has not sought any relief against the respondent on the strength of the allegation that the latter has (allegedly) trespassed into a portion of plaint B schedule way. The suit continues to be one to restrain trespass into plaint A schedule. An Advocate Commissioner has already inspected the property and submitted report and sketch showing the width of plaint B schedule. In the nature of relief sought by the respondent in O.S. No.584 of 2010 and since petitioner or other defendants have not claimed any relief against the respondent I am not inclined to think that measurement of plaint A schedule with the assistance of a Surveyor is required as prayed for in O.S. No.584 of 2010. In that view of the matter there is no reason to interfere with Ext.P.7, order. But I make it clear that I am not making any O.P(C) No.3067 of 2011 -: 3 :- observation regarding the right of petitioner to move appropriate application in the suit petitioner is stated to have filed. Original Petition is disposed of with the above observation. THOMAS P. JOSEPH, JUDGE. vsv