IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 OP(C).No. 808 of 2010(O) ------------------------ OS.1683/2008 of MUNSIFF COURT,IRINJALAKUDA .................... PETITIONER: ----------------------- MAHAVISHNU DEITY AND DEVOTEES, KARAMUKKU, MAHAVISHNU TEMPLE, KUZHIKKATTUKONAM DESOM, MADAYIKONAM VILLAGE, MUKUNDAPURAM TALUK,REP.BY 1. VASUDEVAN NAMBOODIRI, AGED 50 YEARS, S/O. VASUDEVAN NAMBOODIRI, KADALOORAMALLUR ILLAM, ANANDAPURAM, MUKUNDAPURAM TALUK. 2. NANDAKUMAR, S/O. SUBRAMANIAN, KUZHIKKATTUKONAM DESOM, MADAYIKONAM VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. SRI.V.M.KRISHNAKUMAR, SMT.P.A.ANITHA. RESPONDENT(S): --------------------------- 1. SHANA, W/O. SUNILAN, VENGINIPARAMBIL, KUZHIKKATTUKONAM DESOM, MADAYIKONAM VILLAGE, MUKUNDAPURAM TALUK, PIN-680 714. 2. JAYAN, BUILDING CONTRACTOR, S/O. APPUKUTTAN, MULLEKKAT HOUSE, MAPRANAM, PORATHISSERY VILLAGE, TRICHUR DISTRICT, PIN-680 310. 3. SUNILAN, S/O. VENGINIPARAMBIL MANI, KUZHIKKATTUKONAM DESOM, MADAYIKONAM VILLAGE, MUKUNDAPURAM TALUK, PIN-680 714. R1 & R3 BY ADVS.SRI.G.SREEKUMAR (CHELUR), SRI.K.RAVI (PARIYARATH). R2 BY ADV. SRI.RAJESH CHAKYAT THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C) NO.808/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AMENDED PLAINT, O.S.NO.1683/2008 OF THE MUNSIFF COURT, IRINJALAKUDA. P2: COPY OF THE COMMISSION APPLICATION I.A.NO.499/2010 WITH AFFIDAVIT. P3: COPY OF THE ORDER OF THE MUNSIFF COURT, IRINJALAKUDA IN I.A.NO.499/2010 DTD. 11/10/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.808 of 2010 --------------------------------------- Dated this 13th day of July, 2011 JUDGMENT Plaintiff in O.S.No.1683 of 2008 of the Court of learned Munsiff, Irinjalakkuda is the petitioner, aggrieved by Ext.P3, order dated October 11, 2010 dismissing Ext.P2, application (I.A.No.499 of 2010) in O.S.No.1683 of 2008 for appointment of an Advocate Commission for measurement of the property with the assistance of a Surveyor. That application was dismissed by the learned Munsiff holding indirectly that petitioners have no locus standi to file the suit. Learned counsel for petitioners contended that the finding entered by the learned Munsiff is pre- mature and that request for survey of commission ought to have been allowed. Learned counsel for respondents 1 and 3 contend that application preferred by the petitioners is nothing but a luxury and that the litigation is vexatious. 2. According to the petitioners, they have brought the suit for declaration of title to the property of the deity and for injunction. The plaint was taken on file and summons was issued to the respondents who filed written statement disputing the claim of petitioners. It is not disputed that along with institution O.P(C).No.808 of 2010 -: 2 :- of the suit an Advocate Commissioner inspected the property and submitted report. According to the petitioners, there was trespass into the suit property by the respondents who took possession of about 6 cents of land out of the suit property and constructed a building thereon. It is in the circumstance that petitioners filed Ext.P2, I.A.No.499 of 2010 for appointment of an Advocate Commissioner to measure the properties including the alleged trespassed area with the assistance of a Surveyor. It is seen from Ext.P3, order that petitioners had produced a copy of settlement register and a copy of survey sketch of property in survey No.197/2. Learned Munsiff observed that though, the settlement register would show existence of a temple in survey 197/2, that document is no substitute for a title deed as it is a revenue record meant for collection of land revenue. A similar observation was made regarding the survey sketch produced by respondents. 3. I afraid that the above observations made are pre- mature. It is not a case where plaint has been rejected for absence of any cause of action or for other reasons. Petitioners should have been given opportunity to adduce evidence regarding the alleged trespass, if any. Question whether O.P(C).No.808 of 2010 -: 3 :- petitioners are entitled to the reliefs prayed for is a different matter. If after trial of the case learned Munsiff finds that the suit is vexatious, appropriate remedy is available to the respondent. Having regard to the circumstances, I am inclined to think that Ext.P2, order cannot be sustained. Resultantly this original petition is allowed. Ext.P3, order is set aside. I.A.No.499 of 2010 is allowed. Learned Munsiff shall appoint an Advocate Commissioner and surveyor for measurement of the property. The matters to be identified and reported by the Advocate Commissioner shall be decided by the learned Munsiff after hearing counsel on both sides. Learned Munsiff shall fix the bata payable to the Commissioner and the Surveyor. I make it clear that if respondents want any matter to be ascertained and reported by the Advocate Commissioner, it is open to them to request learned Munsiff to issue such direction as well. (THOMAS P JOSEPH, JUDGE) Sbna/-