IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 3213 of 2009(G) ------------------------- AGAINST THE ORDER IN IA.703/08,1004/08 IN OS.88/2007 of MUNSIFF MAGISTRATE COURT, SASTHAMCOTTA .................... PETITIONER/ PETITIONER/PLAINTIFF: ------------------------- V.V.GEORGE, THIRUVALLALAYAM VEEDU, PANAPPETTI MURI, SASTHAMCOTTA VILLAGE. BY ADV. SRI.K.HARILAL RESPONDENTS/: RESPONDENTS/DEFENDANTS: -------------------------- 1. PADMAVATHY AMMA, THENGUMVILAYIL, PANAPPETTY MURI, SASTHAMCOTTA VILLAGE. 2. PADMAKUMAR, DO. DO. 3. RAMACHANDRAN PILLAI, KIZHAKKEBHAGATHU PUTHEN VEEDU, DO. DO. 4. SANTHINI.V.R., DO. DO. 5. BABURAJ, DO. DO. ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R3-R5 SRI.A.R.DILEEP FOR R3-R5 SMT.SURYA SASI FOR R3-R5 SRI.B.MOHANLAL FOR R1 SRI.P.V.DILEEP FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.3213 OF 2009 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.88 OF 2007 ON THE FILE OF MUNSIFF MAGISTRATE COURT, SASTHAMCOTTA EXHIBIT P2 : WRITTEN STATEMENT FILED BY DEFENDANTS 3 TO 5 IN O.S.No.88 OF 2007 ON THE FILE OF MUNSIFF MAGISTRATE COURT, SASTHAMCOTTA DTD 03-07-2007 EXHIBIT P3 : COMMISSION REPORT WITH PLAN SUBMITTED BY the ADVOCATE COMMISSIONER IN O.S.No.88 OF 2007 DTD 29.09.2007 EXHIBIT P4 : COMMISSION APPLICATION NO.703 OF 2008 IN O.S.No.88 OF 07 NTHE FILE OF MUNSIFF MAGISTRATE COURT, SASTHAMCOTTA DTD 17.06.2008 EXHIBIT P5 : I.A.NO.1004 OF 2008 IN O.S.No.88 OF 2007 OF MUNSIFF MAGISTRATE COURT, SASTHAMCOTTA EXHIBIT P6 : COMMON ORDER PASSED IN I.A.NO.703 OF 2008 and 1004 OF 2008 IN O.S.No.88 OF 2007 OF MUNSIFF MAGISTRATE COURT, SASTHAMCOTTA DTD 10.11.08 RESPONDENTS' EXHIBITS : NIL True Copy P.A. To Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.3213 of 2009 --------------------------------------- Dated this 28th day of June, 2010 JUDGMENT Plaintiff in O.S.No.88 of 2007 of the court of learned Munsiff-Magistrate, Sasthamcotta challenges Ext.P6, order to the extent that it dismissed I.A.No.703 of 2008 filed by petitioner/plaintiff seeking survey of the properties based on the original (old) survey plan. According to the petitioner, respondents made an attempt to get the properties measured through the survey authorities and put up a boundary inside plaint A schedule belonging to the petitioner. Thereon claiming that plaint B schedule which is a small strip of land formed part of plaint A schedule which belonged to the petitioner and that plaint C schedule belonging to the respondents is situated on further north of plaint B schedule, petitioner prayed for declaration of his title, fixation of boundary and injunction. The suit is resisted by respondents. Immediately after institution of the suit an Advocate Commissioner inspected the property and submitted report stating that properties are separated by a stone wall having a length of 100 meters and height of 5 feet and that plaint C schedule is situated about 4 feet lower in level than plaint A schedule. Thereafter petitioner filed I.A.No.703 of 2008 W.P.C.No.3213 of 2009 : 2 : to appoint an Advocate Commissioner with the assistance of Surveyor to measure the properties with reference to the original (old) survey plan and resurvey plan. Respondents filed I.A.No.1004 of 2008 to measure the properties on the basis of resurvey plan. Learned Munsiff-Magistrate was of the view that since the resurvey has become final and petitioner has not taken steps to change the resurvey plan, no purpose will be served in measuring the property with reference to the original (old) survey plan and that properties are to be measured with reference to the resurvey plan and observing so I.A.No.703 of 2008 was dismissed and I.A.No.1004 of 2008 was allowed. Learned counsel states that lie of the properties is in accordance with original (old) survey plan and hence to resolve the controversy it is necessary that properties are measured with reference to original (old) survey plan also. Learned counsel for respondents while supporting the order under challenge pointed out that prayer Nos. 3 and 4 in I.A.No.703 of 2008 are not necessary for disposal of the suit as it is instituted. 2. Question whether in view of the resurvey becoming final petitioner's claim of title over disputed property is lost is something which learned Munsiff-Magistrate has to decide after trial. Having regard to the contentions raised by petitioner it is only just and proper that the properties are measured with W.P.C.No.3213 of 2009 : 3 : reference to the original (old) survey plan as well. The Commissioner can measure the properties in accordance with original (old) and resurvey plan and prepared separate plans accordingly. It will be open to the parties to adduce evidence at the stage of trial as to which of the plans is to be accepted and depending on the facts and circumstances, learned Munsiff- Magistrate has to decide which of the plans, whether the one based on old survey or the resurvey is to be accepted. There is no reason why evidence on the side of the petitioner as prayed for should be shut out at the initial stage itself. Having regard to the facts and circumstances I am inclined to allow the petition but not to the extent prayed for. On the facts and circumstances now before court it is not necessary for Commissioner to investigate into item Nos. 3 and 4 prayed for in I.A.No.703 of 2009. Resultantly this writ petition is allowed in the following lines: (i) The common order of the learned Munsiff-Magistrate, Sasthamcotta to the extent it dismissed I.A.No.703 of 2008 is set aside. (ii) I.A.No.703 of 2008 is allowed to the extent it related to reliefs 1 and 2 prayed for therein and measurement of the properties based on the original (old) survey plan as well. (THOMAS P JOSEPH, JUDGE) Sbna/-