IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 WP(C).No. 32525 of 2008(V) -------------------------- OS.130/2008 of MUNSIFF COURT, VAIKOM .................... PETITIONERS: ---------------- 1. KUTTAN, S/O.AYYAPPAN, JAYABHAVAN HOUSE, BRAHMAMANGALAM KARA, CHEMPU VILLAGE, VAIKOM TALUK. 2. JAYAN, S/O.KUTTAN, RESIDING AT JAYABHAVAN HOUSE, BRAHMAMANGALAM KARA, CHEMPU VILLAGE, VAIKOM TALUK. 3. SELVARAJ, S/O.KUTTAN, RESIDING AT JAYABHAVAN HOUSE, BRAHMAMANGALAM KARA, CHEMPU VILLAGE, VAIKOM TALUK. 4. KARAMPAN, S/O.AYYAPPAN, KALARKODU HOUSE, BRAHMAMANGALAM KARA, CHEMPU VILLAGE. 5. DASAN, S/O.VAVA, PATTAKANDATHIL HOUSE, BRAHMAMANGALAM KARA, CHEMPU VILLAGE. 6. JAYAN, S/O.KAMALA, PANACHAMTHARA LAKSHAMVEETTIL, BRAHMAMANGALAM KARA, CHEMPU VILLAGE. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENT: --------------- P.I.JOSEPH, W/O.ISSAC, ILLICKAL HOUSE, POOVANTHURUTHU KARA, PANACHICKADU VILLAGE, KOTTAYAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.32525 of 2008 ------------------------------------------------ Dated this the 10th day of November, 2008 JUDGMENT Petitioners are defendants in O.S.130/08 on the file of the Munsiff's Court, Vaikom. The said suit was instituted by the respondent. The suit itself is for a decree of permanent prohibitory injunction restraining the petitioners from trespassing into the scheduled properties 1, 2, and 3 and from committing any waste therein and from demolishing the boundaries of the scheduled properties. Respondent has filed a written statement contending that he is owner of 4 acres and 30.71 cents comprised in various survey numbers by virtue of three sale deeds. A commission was issued on the application of the respondent/plaintiff vide I.A.684/08 and the Commissioner submitted an ex parte Commission Report and sketch. The petitioners W. P. C No.32525 of 2008 -2- filed I.A.1418/08 in the said suit for measurement of the property belonging to them and covered by the three documents stated in the written statement with the help of a surveyor. The learned Munsiff dismissed the commission application vide Ext.P5 order assailed in this Writ Petition. The trial court has observed that there is no prayer to identify the plaint schedule property in the suit and that the defendants who are the petitioners herein have not raised any counter claim in the suit and their property is not subject matter of the suit. The burden is on the respondent/plaintiff to establish their title and possession over the property scheduled to the plaint and if the plaintiff fails to establish the identity and possession over the scheduled property the suit necessarily will have to be dismissed. There is no need at all to depute a Commissioner W. P. C No.32525 of 2008 -3- with the assistance of a surveyor to prepare a plan of the property belonging to the petitioners/defendants. The commission application filed by the petitioners/defendants were being rightly dismissed by the court below. There is no merit in this Writ Petition and this Writ Petition is dismissed in limine. K.P.BALACHANDRAN, JUDGE kns/-