IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 OP(C).No. 468 of 2010(O) ------------------------ ( OS.25/2008 OF MUNSIFF COURT-II P, KOZHIKODE) .................... PETITIONERS ---------------------- 1. VISWANATHAN.K.P., 53 YEARS, S/O. PANHAN PALLIPURATH MEETHAL, KOMMERI.P.O., VALAYANAD AMSOM, KOMMERI DESOM, KOZHIKODE TALUK. 2. BHANUMTHI, AGED 49 YEARS, W/O. VISWANADHAN, DO-DO- 3. P.VIJAYAN, AGED 52 YEARS, S/O. CHOYI, DO-DO- BY ADVS. SRI.T.R.RAVI SRI.P.S.MURALI RESPONDENTS: --------------------- 1. T.P. ASOKAN, 48 YEARS, S/O. BALAN, PALLIPURATH MEETHAL, KOMMERI.P.O. VALAYANAD AMSOM, KOMKMERI DESOM, KOZHIKODE TALUK, PIN-673001. 2. NISHA, AGED ABOUT 35 YEARS, W/O. T.P. ASOKAN, -DO-DO- PIN-673001. BY ADV. SRI.NIRMAL. S THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 468 of 2010(O) ---------------------------------- APPENDIX -------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF PLAINT IN O.S. 25/08 EXT.P2. COPY OF COMMISSIONER'S REPORT DATED 11.12.2008 EXT.P(A): COPY OF SKETCH SUBMITTED BY COMMISSIONER ALONG WITH EXT.P2. EXT.P3. COPY OF COMMISSIONER'S REPORT DATED 29.1.2010 EXT.P3(A). COPY OF SKETCH SUBMITTED BY THE COMMISSIONER ALONG WITH EXT.P3. EXT.P4. COPY OF I.A. NO.1561/2010 EXT.P5. COPY OF ORDER DATED 26.7.2010. RESPONDENTS EXHIBITS : NIL --------------------------------------------------- / TRUE COPY / P.A. TO JUDGE VK VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.468 of 2010 --------------------------------------- Dated this 14th day of December, 2010 JUDGMENT Plaintiffs in O.S.No.25 of 2008 of the court of learned Munsiff- II, Kozhikode are the petitioners before me challenging Ext.P5, order refusing to remit Exts.P3 and P3(a), report dated 29-01-2010 and plan appended to it. Petitioners sued for recovery of possession of plaint D schedule alleging it to is part of plaint E schedule way which according to petitioners is their means of access to plaint A to C schedules. The Advocate Commissioner after measurement of the property with the assistance of Village Officer submitted Exts.P3 and P3(a). Petitioners filed I.A.No.1561 of 2010 to remit Exts.P3 and P3(a) for further investigation which the learned Munsiff has dismissed by Ext.P5, order stating that there is no deficiency in Exts.P3 and P3(a). Learned counsel submitted that it is the case of petitioners that respondents trespassed into portions of plaint E schedule way which is marked in the plaint as D schedule which has not been identified as seen from Ext.P3(a). I have heard learned counsel for respondent No.1 also. 2. I have gone through Exts.P3 and P3(a) and it is seen that the allegedly trespassed portion in plaint E schedule way has not been separately identified or marked. In the nature of the suit and O.P(C).No.468 of 2010 : 2 : relief claimed for recovery of possession of the allegedly trespassed area it is necessary that Commissioner identified the allegedly trespassed area and the same is also marked in the plan. In that view of the matter I am inclined to think that learned Munsiff was not correct in I.A.No.1561 of 2010. Resultantly this petition is allowed in the following lines: Ext.P5, order dismissing I.A.No.1561 of 2010 in O.S.No.25 of 2008 of the court of learned Principal Sub Judge-II, Kozhikode is set aside and that application will stand allowed to the extent that Ext.P3, report dated 29-01-2010 and Ext.P3(a), plan appended to it are remitted to the Advocate Commissioner to identify and mark the allegedly trespassed portion in plaint E schedule way. Additional batta if any, payable to the Commissioner and Surveyor shall be fixed by the learned Munsiff. (THOMAS P JOSEPH, JUDGE) Sbna/-