IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 OP(C).No. 3128 of 2011(O) ------------------------- OS.233/2009 of MUNSIF COURT, KANJIRAPPALLY .................... PETITIONER: ------------------ P.D. ASHARAF, PUTHENPURACKAL, ERUMELY. BY ADV. SRI. T.I.ABDUL SALAM RESPONDENTS: ----------------------- 1. JOSEPH ABRAHAM, SRAKATHU, ERUMELY. 2. MARTIN, SRAKATHU,ERUMELY. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMG O.P (C) No.3128/2011. APPENDIX PETITIONER'S EXHIBITS EXT.P1 – COPY OF THE PLAINT DATED 19-09-2009 IN O.S. No.233/2009 OF THE MUNSIFF COURT, KANJIRAPPALLY. EXT.P2 – COPY OF THE WRITTEN STATEMNET DATED 01-12-2009 IN O.S. No.233/2009 OF THE MUNSIFF COURT, KANJIRAPPALLY. EXT.P3 – COPY OF THE COMMISSIONER'S REPORT DATED 05-10-2010 IN O.S. No.233/2009 OF THE MUNSIFF COURT, KANJIRAPPALLY. EXT.P4 – COPY OF THE PLAN IN O.S.No.233/2009 OF THE MUNSIFF COURT, KANJIRAPPALLY. EXT.P5 – COPY OF I.A. No.1327/2010 DATED 11-09-2010 IN O.S. No.233/2009 OF OF THE MUNSIFF COURT, KANJIRAPPALLY. EXT.P6 – COPY OF THE OBJECTION DATED 24-1-2010 IN I.A. No.1327/2010 IN O.S. No.233/2009 OF THE MUNSIFF COURT, KANJIRAPPALLY. EXT.P7 – COPY OF THE DEPOSITION OF PW1 IN O.S. No.233/2009 OF THE MUNSIFF COURT, KANJIRAPPALLY EXT.P8 – TRUE COPY OF THE ORDER DATED15-07-2011 IN I.A No.1327/2010 IN OS. No.233/2009 OF THE MUNSIFF COURT, KANJIRAPPALLY. RESPONDENTS EXHIBITS NIL TRUE COPY P.A. TO JUDGE AMG THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3128 of 2011 --------------------------------------- Dated this 02nd day of November, 2011 JUDGMENT Respondents are served. But, there is no response. 2. The challenge in this original petition is to Ext.P8, order passed by the learned Munsiff, Kanjirappally on I.A.No.1327 of 2010 in O.S.No.233 of 2009 refusing to set aside Exts.P3 and P4 (Exts.C1 to C1(c) marked in the court below), report and plans. Petitioner filed the suit for prohibitory injunction to restrain the respondents from trespassing into the schedule property, making constructions affecting free flow of air through the window of petitioner and destroying the boundary or committing waste in the said property. Respondents filed Ext.P2, written statement contending that description of the suit property is not correct and that the eastern boundary of the said property is not clear from the plaint averments. They claimed that they have filed O.S.No.228 of 2009 against the petitioner. Respondents claimed that they have filed Ext.P2, written statement on the assumption that the suit property is the property situated on the west of property involved in O.S.No.288 of 2009 which is 8.75cents in survey 98/10 and 98/11. In the O.P(C).No.3128 of 2011 -: 2 :- course of the suit on the request of petitioner, the Advocate Commissioner and Surveyor inspected the property and submitted Exts.P3 and P4, report and plans. Since that was not acceptable to the petitioner, he filed I.A.No.1327 of 2010 to set aside the said report and plans. On that application the Surveyor was examined as PW1. Learned Munsiff, relying upon the evidence of PW1 and Exts.P3 and P4 found that PW1, the Surveyor has done what was required of him, the Surveyor has pointed out the true situation which existed at the spot and that there is no reason to set aside Exts.P3 and P4, report and plans (marked Exts.C1 to C1(c) in the court below). 3. Learned counsel for petitioner has argued that the Surveyor has acted on assumptions and surmises and has even developed a case which respondents did not have in their written statement. According to the learned counsel, measurement was not based on the resurvey measurements and the existing survey stone found by the Surveyor in the suit property. Learned counsel has invited my attention to Exts.P3 and P4, report and plans as also the testimony of the Surveyor as PW1. 4. In Ext.P4, the Surveyor has reported the “fact evidence” and stated that as per the resurvey, property of petitioner had road frontage on the north at a width of 6.9meters O.P(C).No.3128 of 2011 -: 3 :- and for the property of respondents, road frontage at a width of 10 meters but, when the road was widened and the curve was straitened, petitioner lost a portion of his property, his road frontage was reduced and having regard to the lie of the property, respondents got a bit more. Petitioner or his predecessor-in-interest without taking that into account, has replanted the survey stones 50cm east of the property of respondents. It is further stated that the Surveyor had convinced the Advocate Commissioner, petitioner and the respondents of the said fact. also been convinced of the same. In the evidence, Surveyor stated as PW1 that if any portion of property is acquired or surrendered either by acquisition or by relinquishment, the extent of property thus acquired or surrendered will be deducted in the thandaper account. But, Surveyor had not seen any such document so far as the disputed properties are concerned. He also stated that he had not seen any such deduction in the extent of the property of petitioner in the receipts for payment of revenue. He stated that as there were buildings, measurements in Exts.C1 to C1(c) was made by developing the same from the computer. 5. It is pointed out by learned counsel for petitioner that respondents have no case that on account of widening of the road O.P(C).No.3128 of 2011 -: 4 :- or straitening of the curve, there was any reduction in the extent of property belonging to the petitioner or that they got anything more and that Surveyor has found out a new case for the respondents. According to the learned counsel the Surveyor ought to have measured the property based on the existing resurvey plan as also the survey stone seen at the spot. 6. Having heard learned counsel, I do not find reason to set aside Exts.P3 and P4 (Exts.C1 to C1(c)) in view of the reason stated by the Surveyor as to the reduction in extent of the property of petitioner and addition to the property of respondents. Whether that is correct or not, or acceptable or not is a matter which the trial court has to decide if that question is required to be decided in the suit. 7. But the grievance of petitioner can be redressed by directing the Surveyor to measure the properties with reference to the resurvey plan and the existing survey stones if any also so that, the trial court could consider the same along with the existing report and plans and decide which of the report and plans could be accepted. Such a course will not cause prejudice to the respondents also. Resultantly this original petition is allowed as follows: (i) Without interfering with Ext.P8, order or report and plans - Exts.P3 and P4 O.P(C).No.3128 of 2011 -: 5 :- (Exts.C1 to C1(c)) it is ordered that learned Munsiff shall direct the Advocate Commissioner and Surveyor to measure the properties in dispute with reference to the resurvey plan as also the existing survey stones if any and submit report and plan. (ii) If the respondents want any further fact to be ascertained, they can file work memo in the court below and the Court shall pass appropriate orders on that work memo. (iii) The question as to which of the reports and plans is to be accepted shall be decided by the learned Munsiff after trial of the case. (iv) Learned Munsiff shall ensure that if available the same Commissioner and Surveyor conducts further inspection as above stated. (v) The batta payable to the Advocate Commissioner and Surveyor shall be fixed by the learned Munsiff and payable by petitioner. In case respondents file any work memo and that is accepted, it is open to the learned Munsiff to make the respondents also liable to pay such portion of the batta as may be decided by the learned Munsiff. (THOMAS P. JOSEPH, JUDGE) Sbna/-