IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 OP(C).No. 524 of 2010(O) ------------------------ AGAINST THE ORDER IN IA.1165/2010 IN OS.75/2000 of SUB COURT, SULTHAN BATHERY .................... PETITIONER: ----------------------- MAKKUNNATH NABEESA,W/O.LATE AKKARAMMAL ELANTHA CHERIYA AMMED,AGED 72,PERIYA P.O.,PERIYA AMSOM DESOM,MANANTHAVADY TALUK,REP.BY P.O.A.HOLDER A.C.ALI,AGED 57,S/O.ELANTHA CHERIYA AMMED, MAKKUNNATH HOUSE,PERIYA AMSOM DESOM,PERIYA POST, MANATHAVADY TALUK,WAYANAD DIST-PIN-670644. BY ADV. SRI.SRINATH GIRISH SRI.E.NARAYANAN RESPONDENT: --------------- JAMEELA, W/O.THEVU USMAN MUSALIYAR AGED 42,RESIDING AT 5TH MILE, PORUNNANNUR AMSOM DESOM,MANATHAVADY TALUK WAYAND DISTRICT-670645 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 524 of 2010 APPENDIX PETITIONRE'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE PLAINT DTD 13.10.2000 IN O.S.NO.75 OF 2000 ON THE FILE OF THE SUBORDINATE JUDGE, SULTHAN BATHERY EXHIBIT P2 : TRUE COPY OF THE WRITTEN STATEMENT DTD 17.08.2001 SUBMITTED BY THE respondent/ defendant IN O.S.NO.75 OF 2000 BEFORE the SUBORDINATE JUDGE, SULTHAN BATHERY EXHIBIT P3 : TRUE COPY OF THE AFFIDAVIT AND PETITION DTD 22.10.2010 SUBMITTED BY THE COUNSEL FOR THE RESPONDENT IN I.A.NO.1165/2010 IN O.S.NO.75/2000 BEFORE the SUBORDINATE JUDGE, SULTHAN BATHERY EXHIBIT P4 : TRUE COPY OF THE COUNTER STATEMENT DTD 25.10.2010 SUBMITTED BY THE COUNSEL FOR THE RESPONDENT IN I.A.NO.1165/2010 IN O.S.NO.75/2000 BEFORE the SUBORDINATE JUDGE, SULTHAN BATHERY EXHIBIT P5 : TRUE COPY OF THE COMMON ORDER DTD 26.10.2010 IN I.A.NOS.1163/2010, 1164/2010 and I.A.NO.1165/2010 IN O.S.NO.75/2000 BEFORE the SUBORDINATE JUDGE, SULTHAN BATHERY. RESPONDENT'S EXHIBITS: NIL /True Copy/ P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.524 of 2010 --------------------------------------- Dated this 22nd day of August, 2011 JUDGMENT This Court on 25.02.2011 directed that notice may be served on counsel appearing for respondent in the trial court and accordingly notice was served on the counsel and a memo is filed. Thereafter notice was ordered to the respondent but, it is not returned. In view of Rule 59 of the Kerala High Court Rules service on counsel appearing in the trial court is sufficient. Hence service of notice on respondent is declared as sufficient. 2. The limited question I am required to decide in this proceeding is whether petitioner should be given an opportunity to prove the report of the Advocate Commissioner, filed in O.S.No.27 of 2005 of the Court of learned Sub Judge, Sulthan Bathery. That issue arose in O.S.No.75 of 2000 filed by the petitioner for a declaration that the gift deed executed by her deceased husband in favour of her daughter, the respondent in respect of 1 Acre forming part of suit property in O.S.No.75 of 2000 is not acted upon, it was executed only as security and for other reliefs. Respondent contended that she has acted upon the gift deed and transferred the property to one Aboobacker in the O.P(C).No.524 of 2010 -: 2 :- year, 2000. While so, the said Aboobacker filed O.S.No.122 of 2000 in the Court of learned Munsiff-Magistrate, Mananthavady against petitioner seeking relief of injunction. That case was later transferred to the Court of learned Sub Judge, Sulthan Bathery and renumbered as O.S.No.27 of 2005. In that case an Advocate Commissioner was appointed to identify the property covered by the gift deed and I am told, that an interim report was filed in that case stating that without the assistance of a Surveyor the Commissioner is not able to identify 1Acre covered by the gift deed. Later, Aboobacker died and I am told that O.S.No.27 of 2005 was dismissed as abated. In O.S.No.75 of 2000 petitioner wanted the report of the Advocate Commissioner in O.S.No.27 of 2005 be proved in evidence and for the said purpose, filed I.A.Nos.1163, 1164 and 1165 of 2010 to reopen the evidence, call for records in O.S.No.27 of 2005 and examine the Advocate Commissioner to prove the documents. The said applications were dismissed by the learned Sub Judge as per Ext.P5, order for the reason that even as per the case of petitioner, the Advocate Commissioner in O.S.No.27 of 2005 has given only an interim report and that will not in any way help the contention raised by petitioner in O.S.No.75 of 2000. Learned counsel submitted that O.P(C).No.524 of 2010 -: 3 :- the intend of petitioner in examining the Advocate Commissioner is to prove through the interim report that the one Acre covered by the gift deed is not identifiable and the gift deed was not acted upon. It is also submitted by learned counsel that now, a copy of the report has been obtained by petitioner and what is required is only to examine the Advocate Commissioner to prove the same. 3. Having heard learned counsel and gone through the impugned order I am inclined to think that petitioner must be given an opportunity to prove the report of the Advocate Commissioner in O.S.No.75 of 2000 and to examine the Advocate Commissioner for that purpose. What is the probative value of the report and how it affects the person who claims to be the real owner of the property are matters which the trial court has to decide. Resultantly this original petition is allowed and Ext.P5, order to the extent it related to I.A.Nos.1163 and 1165 of 2010 are set aside. Petitioner will get an opportunity to examine the Advocate Commissioner and prove the certified copy of the report in O.S.No.27 of 2005. (THOMAS P JOSEPH, JUDGE) Sbna/-