IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 WP(C).No. 25235 of 2010(O) -------------------------- OS.1317/2009 of II ADDL.MUNSIFF COURT,THRISSUR .................... PETITIONER(S): --------------- 1. VARGHESE, S/O.GEORGE KAITHAMANGALATH, OLLUKKARA VILLAGE, KOOTALA DESOM, THRISSUR TALUK. 2. VALSAMMA, W/O.KAITHAMANGALATH VARGHESE, KAITHAMANGALATH, OLLUKKARA VILLAGE, KOOTALA DESOM, THRISSUR TALUK. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT(S): --------------- 1. GEORGE, S/O.JOHN KAITHAMANGALATH, OLLUKKARA VILLAGE, MULLAKKARA DESOM, THRISSUR TALUK - 680 655. 2. JOSEPH, S/O.JOHN KAITHAMANGALATH, OLLUKKARA VILLAGE, MULLAKKARA DESOM, THRISSUR TALUK - 680 655. 3. THOMAS, S/O.JOHN KAITHAMANGALATH, OLLUKKARA VILLAGE, MULLAKKARA DESOM, THRISSUR TALUK - 680 655. 4. DANIEL, S/O.JOHN KAITHAMANGALATH, OLLUKKARA VILLAGE, MULLAKKARA DESOM, THRISSUR TALUK - 680 655. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.25235 of 2010 -------------------------------------- Dated this the 12th day of August, 2010. JUDGMENT Exts.P13 and P15, orders in O.S.No.1317 of 2009 of the court of learned Munsiff, Thrissur are under challenge. Petitioners/plaintiffs sued respondents for a decree for prohibitory injunction against the latter trespassing into the suit property, making any way through it or filling plaint B schedule chal which according to the petitioners formed the western boundary of suit property. It is also their case that property of respondents is situated on the west of the said water chal. Along with the suit petitioners filed an application for temporary injunction and an interim oder of injunction was granted. The Advocate Commissioner inspected property and reported about lie and condition of the properties. According to the petitioners, Advocate Commissioner has reported that plaint B schedule is a chal and is the boundary demarcating properties belonging to them and respondents. Later petitioners filed application under Order XXXIX Rule 2A of the Code of Civil Procedure (for short, “the Code”) for prosecution alleging that respondents violated the interim order of injunction and another application for mandatory injunction to remove the fence put up on the eastern side of the water chal, ie. towards western portion of schedule property allegedly trespassing into that portion of plaint A schedule. There was also an application to appoint an Advocate Commissioner to report on the alleged disobeyance . That Commissioner submitted Ext.P5, report. While so, WP(C) No.25235/2010 2 the matter came to this Court and there was an attempt to settle the dispute. The matter was sent to mediation centre for consideration where a report and plan of the Surveyor were obtained. There was however no settlement. Petitioners filed I.A.No.11515 of 2009 to appoint an Advocate Commissioner again alleging violation of the order of injunction by the respondents. Respondent No.1 responded by filing I.A.No.10825 of 2009 for issue of a Commission but with a prayer to measure the schedule property with the assistance of a Surveyor. Learned Munsiff allowed both the applications vide Ext.P13, common order. Petitioners then filed I.A.No.1736 of 2010 to review Ext.P13, common order to the extent it concerned I.A.No.10825 of 2009 stating that since at the time of mediation Taluk Surveyor has measured the property and submitted a report and plan a further report and plan were not necessary. That application was dismissed by the learned Munsiff vide Ext.P15, order. Exts.P13 and P15, orders are under challenge before me. Learned counsel for petitioners contend that this being a suit for injunction it is not necessary to have a survey of properties and what is relevant is to decide whether suit property on the date of suit was in the possession of petitioners. It is also contended that at any rate respondents have no case that they have any land beyond the water chal on the east of their property and hence survey is not required. If at all a survey plan is required, it is available on record. WP(C) No.25235/2010 3 2. So far as interference with the impugned orders are concerned, question is whether the court below has exercised the jurisdiction which it did have, correctly. True the suit is for prohibitory injunction based on possession but it is not as if an issue regarding title is not at all relevant in such a case though ordinarily the court is concerned with the claim of possession. If the prayer for injunction is regarding a portion of the property belonging to the respondents it is within the power of the court to refuse injunction in respect of that since injunction cannot be issued against a rightful owner of the property. Therefore measurement of the property cannot be said to be unwarranted in all circumstances irrespective of the facts of the case. Here boundary of the property is in dispute. In such a situation court below thought that it is appropriate to have a survey measurement of the property. 3. It is true that in the course of mediation a Surveyor was deputed to measure the properties. Respondents claimed that that Taluk Surveyor had then measured the properties without taking into account grievance of the parties and that they were not given opportunity to raise their grievance in the matter. I must bear in mind that the report and plan were obtained in the course of a mediation and not on the order of court under Order XXVI Rule 9 of the Code. Therefore there is nothing illegal in the court below directing measurement of the property with the assistance of Surveyor. 4. Yet another objection is that only the property of petitioners is sought to be measured. But I must bear in mind that as of now there is no relief WP(C) No.25235/2010 4 claimed by respondents against the properties of the petitioners and they only opposed prayer for injunction with respect to the property scheduled in the plaint. As such question for consideration is whether petitioners are entitled to the injunction in respect of the said item. 5. It is then pointed out by learned counsel for petitioners that attempt of respondents is to prolong decision on the prosecution petitions preferred by the petitioners. I make it clear that it is open to the learned Munsiff to consider the pending applications without waiting for a survey measurement of the properties if on the facts of the case such a course is possible. 6. So far as the contention of learned counsel that since the properties fall in two Villages, the Village Officer of one Village cannot conduct measurement is concerned, I leave that matter to the learned Munsiff to decide. If the objection is valid then a Surveyor competent to make measurement of properties in both the Villages may have to be deputed. With the above direction, this Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks