IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 WP(C).No. 28900 of 2010(O) -------------------------- AGAINST THE ORDER DATED 04/08/2010 IN IA 1823/08 IN OS.530/2007 of MUNSIFF COURT, CHALAKUDY .................... PETITIONER(S): ----------------------- PAUL, S/O.KANICHAI ANTONY VYNTHALA DESOM, KALLUR VADAKUMURY VILLAGE MUKUNDAPURAM TALUK,THRISSUR DISTRICT. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): ------------------------- 1. PAULSON, S/O.KANICHAI KOCHAPPU, VYNTHALA DESOM, KALLUR VADAKUMURY VILLAGE, MUKUNDAPURAM TALUK - 697182 2. ROSILY, W/O.PAULSON, KANICHAI HOUSE VYNTHALA DESOM, KALLUR VADAKUMURY VILLAGE, MUKUNDAPURAM TALUK - 697182 ADV. SRI.C.P.SAJI FOR R1-R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28900 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PLAINT DATED 15.12.07 IN O.S. No.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. EXT.P2 : COPY OF THE WRITTEN STATEMENT DATED 11.4.08 FILED BY THE RESPONDENT IN O.S. No.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. EXT.P3 : COPY OF THE COMMISSION REPORT DATED 1.1.2008 FILED IN O.S. No.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. EXT.P4 : COPY OF THE APPLICATION DATED 11.6.08 FILED BY THE PETITIONER IN O.S. No.530/07. EXT.P5 : COPY OF THE ORDER DATED 17.12.08 IN I.A. No.1823/08 IN O.S. No.530/07. EXT.P6 : COPY OF THE JUDGMENT DATED 16.2.09 IN W.P.(C) No.1343/09 OF THIS HONOURABLE COURT. EXT.P7 : COPY OF THE INTERIM REPORT OF THE ADVOCATE COMMISSIONER DATED 31.7.09 IN O.S. No.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. EXT.P8 : COPY OF THE PROCEEDINGS DATED 31.7.2009 IN O.S. No.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. EXT.P9 : COPY OF THE AMENDED PLAINT SCHEDULE IN O.S. No.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. EXT.P10 : COPY OF THE ORDER DATED 3.6.2010 IN I.A. No.1823/08 IN O.S. No.530/07, MUNSIFF'S COURT, CHALAKUDY. EXT.P11 : COPY OF THE ORDER DATED 4.8.2010 IN I.A. No.1823/08 IN O.S. No.530/07, MUNSIFF'S COURT, CHALAKUDY. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE Kp THOMAS P.JOSEPH, J. ==================================== W.P(C) No.28900 of 2010 ==================================== Dated this the 21st day of July, 2011 J U D G M E N T Exhibits P10 and P11, orders dated June 03, 2010 and August 04, 2010 on I.A. No.1823 of 2008 in O.S. No.530 of 2007 of the court of learned Munsiff, Chalakkudy are under challenge. Parties are closely related. In respect of the suit property which as amended extends to 27.976 cents, petitioner-plaintiff brought the suit for prohibitory injunction alleging that respondents are attempting to trespass into the said property. Respondents while denying the claim of petitioner made a counter claim for fixation of boundary of their property with that of petitioner, described in the plaint schedule. In the suit an Advocate Commissioner inspected the property and submitted Ext.P2, report where he pointed out that between the suit property and counter claim schedule property there were a few old concrete posts with certain glycerdia plants between some of those concrete posts towards the southern side. The Commissioner also reported about the existence of a Kudikidappu along the disputed portion. Respondents filed application for appointment of a Commissioner W.P(C) No.28900 of 2011 -: 2 :- to measure the properties with the assistance of a Surveyor (obviously to fix boundaries of the property they claimed). That application was allowed which was challenged in this Court in W.P (C) No.1343 of 2009 which resulted in Ext.P6, judgment. In that judgment this Court directed that the property be identified with reference to the title deeds and examining whether any physical boundary between the properties existed. Accordingly the Advocate Commissioner inspected the property again and submitted a preliminary report (Ext.P7) regarding existence of the physical boundary. In Ext.P7 also the Commissioner has referred to the concrete posts which I have already referred to. Commissioner reported that for proper measurement assistance of the Village Officer is required. That request was allowed by the learned Munsiff. Petitioner challenged that order in W.P(C) No.22965 of 2009 contending that the said order was passed without hearing him. This Court set aside the order of trial court and remitted the matter for fresh decision after hearing both sides. After hearing both parties trial court passed Ext.P10, order, directing location of the counter claim schedule property with the assistance of Village Officer. Following that, Ext.P11, order was passed as per which the Commissioner was directed to locate W.P(C) No.28900 of 2011 -: 3 :- property on the basis of documents produced by the respondents-defendants (which are listed by petitioner as document Nos.1 to 8 in the plaint). It was also directed that after locating such property if it is found that any common boundary of the property of petitioner on the eastern side exists, the said common boundary shall be fixed with the help of title deed of petitioner as well. 2. Learned counsel for petitioner contended that even before the report and survey plan as directed in Ext.P10, order came, learned Munsiff was not correct in observing that Kudikidappu property of Vallothy is situated on the eastern side of counter claim schedule property. Learned counsel for respondents contended that suit was instituted in the year 2007 and it has not reached anywhere in that the matter is at the stage of Commissioner identifying the property. 3. Having heard learned counsel on both sides what I understand is that grievance of petitioner is mainly regarding the observations learned Munsiff has made in Ext.P11, order as to the location of Kudikidappu of Vallothy. Going by the report of the Advocate Commissioner who inspected the property along with filing of the suit it would appear that Kudikidappu situate W.P(C) No.28900 of 2011 -: 4 :- towards the centre of property belonging to either. But it is premature to say where exactly is the boundary of the properties. That is a matter which has to be identified by the Commissioner with the help of Village Officer as directed in Ext.P10, order. Resultantly, Writ Petition is disposed of expunging the observations made by the learned Munsiff in Ext.P11, order that the counter claim schedule property is admittedly on the western side of the Kudikidappu property of Vallothy. I make it clear that as to where exactly the counter claim schedule property is and Kudikidappu property is, are matters which learned Munsiff has to decide after report and plan are received and after evidence is recorded. THOMAS P. JOSEPH, JUDGE. vsv