IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 OP(C).No. 2229 of 2011(O) ------------------------- OS.410/2010 of ADDL.MUNSIFF'S COURT, PALAKKAD .................... PETITIONER (S): --------------------------- K.B.JINNY, S/O.BHASKARAN, KARAKKAL HOUSE, K.T.C.JUNCTION, KANJIKODE P.O., PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.BINOY VASUDEVAN, SMT.P.G.BABITHA. RESPONDENT(S): --------------------------- 1. C.L.T.RAMANUJAN, S/O.LATE C.A.LAKSHMANA COUNDER, AGED 80 YEARS, RESIDING AT NO.43, PONNURANGAM ROAD, R.S.PURAM, COIMBATORE, REPRESENTED BY THE POWER OF ATTORNEY HOLDER C.T.PURUSHOTHAMAN AND C.T.KESAVAN - 678 205. 2. C.R.MANIVANNAN, S/O.C.L.RAJAGOPAL, AGED ABOUT 45 YEARS, 14/726, KIZHAKKEMURY, KANJIKODE, PALAKKAD TALUK, PALAKKAD DISTRICT - 678 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2229/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.410/2010. P2: COPY OF THE COMMISSION REPORT. P3: COPY OF PLAN. P4: COPY OF I.A.NO.845/2011. P5: COPY OF THE ORDER DTD. 17.06.2011 IN I.A.NO.845/2011 IN O.S.NO.410/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2229 of 2011 ==================================== Dated this the 18th day of July, 2011 J U D G M E N T First defendant in O.S. No.410 of 2010 of the court of learned Munsiff, Palakkad is the petitioner before me challenging Ext.P5, order disallowing prayer of petitioner to set aside the report and plan submitted by the Advocate Commissioner. That is a suit filed by the first respondent for a decree for mandatory injunction to direct the second respondent-second defendant and the petitioner-first defendant to vacate the building in the suit property. According to the first respondent the suit property described as 1.21 acres in Sy.No.309/4 belonged to late Lakshmana Gounder, father of first respondent and others as per document No.1409 of 1947 and on the death of Lakshmana Gounder his legal representatives including first respondent effected partition as per document No.3065 of 2002. B schedule in the partition deed was allotted to the share of the first respondent. He is said to have permitted the second respondent-second defendant to conduct business in the building in that property and the second respondent is said to have inducted petitioner into possession. Hence the suit for mandatory injunction. Petitioner O.P(C) No.2229 of 2011 -: 2 :- contended that his brother had taken the property on lease from the second respondent in the year, 1977 even before partition deed No.3065 of 2002 was executed. He disputed identity of the property and claimed that the building is not situated in the property allotted to the share of first respondent. Learned Munsiff appointed an Advocate Commissioner to inspect the property and submit report. Exhibit P2 is the report and plan. Petitioner filed I.A. No.845 of 2011 to set aside the commission report contending that there is no proper identification of the property. Certain other contentions were also raised in the said application. Learned Munsiff has dismissed that application and observed that commission report is not a conclusive piece of evidence and that during the course of evidence petitioner can prove that the report is erroneous. 2. Learned counsel contended that when objection is preferred to the report the trial court was bound to conduct an enquiry on the same. It is also contended that in paragraph 1 of the impugned order learned Munsiff has entered a finding that the Advocate Commissioner has identified the property as per Village records and title deed No.3065 of 2002. 3. The above observation was not made with reference O.P(C) No.2229 of 2011 -: 3 :- to the question whether property was properly identified or not. On the other hand, objection raised was that the report does not show that with respect to what, the property was identified. Considering that contention learned Munsiff observed that the report shows that suit property is identified with Village records and title deed No.3065 of 2002. Learned Munsiff has also referred to the other objections raised by petitioner. 4. At any rate it is not as if the commission report is finally accepted by the learned Munsiff as learned Munsiff has observed that commission report is not a conclusive piece of evidence and that by examining the Surveyor and Commissioner (at the time of trial) petitioner can prove that there is no proper identification and that report is erroneous. I must also bear in mind that it is the first respondent who is seeking a decree based on the plaint averments and it is for him to prove the allegations so that, he could have a cause of action and right to evict petitioner or other defendant as the case may be. Since learned Munsiff has reserved the right of petitioner to challenge correctness of the report and show that Commissioner has not properly identified the property, I do not find reason to interfere at this stage. O.P(C) No.2229 of 2011 -: 4 :- Original Petition is disposed of without prejudice to the right of petitioner which the learned Munsiff has reserved in the impugned order. THOMAS P. JOSEPH, JUDGE. vsv