IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 OP(C).No. 2361 of 2011(O) -------------------------------- PETITIONER --------------- RAJAN, S/O.VELAN, 62 YEARS, RAJISH NIVAS, VAZHUKKAPARA, MUNDUR AMSOM, PALAKKAD TALUK-678 592. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): --------------------- 1. ANDAVAN, S/O.THEETHU, VALEKKAD, NOCHUPPULLY, PALAKKAD TALUK-678 733. 2. RAJAN, S/O.THEETHU, VALEKKAD, NOCHUPPULLY, PALAKKAD TALUK-678 733. 3. CHENTHAMARAKSHAN, S/O.THEETHU, VALEKKAD, NOCHUPPULLY, PALAKKAD TALUK-678 733. 4. CHANDRAN.V.C, S/O.CHAMI, VALEKKAD, NOCHUPPULLY, PALAKKAD TALUK-678 733. 5. CHANDRAN, S/O.VELAN, VAZHUKKAPARA HOUSE, MUNDUR AMSOM DESOM, PALAKKAD TALUK-678 733. R2-4 BY ADV. SRI.P.K.MOHANAN(PALAKKAD) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO.2361/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO.702/2009 BEFORE ADDL. MUNSIFF COURT, PALAKKAD. P2: COPY OF THE WRITTEN STATEMENT TO EXT.P1 FILED BY RESPONDENTS 1, 5 BEFORE ADDL. MUNSIFF COURT, PALAKKAD. P3: COPY OF AFFIDAVIT AND PETITION FOR APPOINTMENT OF COMMISSIONER AS I.A.2608/2010 IN O.S.NO.702/2009. P4: COPY OF THE ORDER IN I.A.2521/2010 IN O.S.702/2009 DATED 23/09/2010 PASSED BY ADDL. MUNSIFF, PALAKKAD. P5: COPY OF AFFIDAVIT & PETITION AS I.A.1272/2011 IN O.S.702/2009. P6: COPY OF ORDER DATED 16/06/2011 IN I.A. NO.1272/2011 IN O.S. NO.702/2009 OF ADDL. MUNSIFF COURT, PALAKKAD. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2361of 2011 --------------------------------------- Dated this 19th day of September, 2011 JUDGMENT Respondents 1 and 5 are served. Respondents 2 to 4 appear through counsel. 2. Ext.P4, order passed by learned Additional Munsiff, Palakkad dismissing I.A.No.1272 of 2011 in O.S.No.702 of 2009 is under challenge. That is a suit for specific performance of an alleged agreement between petitioner and respondents for sale of the suit property. According to the petitioner, 12.67Acres belonged to Krishnan Kutty Nair, predecessor-in-interest of respondents 1 to 5 and the said property was exempted from the purview of the Kerala Private Forest (Vesting and Assignment) Act as per order in O.A.No.609 of 1974 of the Forest Tribunal, Palakkad. According to the petitioner, respondents who are assignees from the said Krishnan Kutty Nair had executed a document in his favour on 24.09.2007 agreeing to sell the property to him after obtaining N.O.C from the Government, that commitment was not complied and hence the suit. Respondents 1 and 5 filed written statement denying the existence of any such agreement. The suit came for trial in the list when petitioner filed O.P(C).No.2361of 2011 -: 2 :- I.A.No.2521 of 2010 to examine him on commission. That application was allowed on terms of cost. Thereafter petitioner filed I.A.No.2608 of 2011 for appointment of an Advocate Commissioner to identify the property. I am told that the said application has not being disposed of. Petitioner filed Ext.P5, application, I.A.No.1272 of 2011 for the same relief. That application, learned Munsiff dismissed as per Ext.P6, order referring to the observation made by the learned Munsiff while dismissing I.A.No.2521 of 2010 that identification of the property is not required. 3. Learned counsel for petitioner contends that in view of the contentions raised by respondents, it is necessary to ascertain whether the suit property is lying as a single block or, whether there are intervening boundaries within the said property. It is also submitted by learned counsel that for the said purpose measurement of the property is not required and what is required is only that the Advocate Commissioner has only to ascertain whether the suit property is lying as a single block without intervening boundaries within it. That according to learned counsel would help petitioner support his claim regarding the alleged agreement for sale. 4. Learned counsel for respondents 2 to 4 however maintained that this being a suit for specific performance it is not O.P(C).No.2361of 2011 -: 3 :- necessary to go into the question of title or identification of property on the trial side. Those questions arise only if the decree for specific performance is granted and when it is executed by the petitioner. 5. I am inclined to agree with respondents 2 to 4 that identification of the property at this stage by measuring the same either with reference to the document of title or survey records is not required. Having regard to the contentions raised by counsel on both sides it is appropriate to ascertain through an Advocate Commissioner whether the suit property is lying as one block or there are intervening boundaries within the said property. To that extent, I am inclined to allow the request of petitioner. Resultantly this original petition is allowed and Ext.P6, order is set aside. I.A.No.1272 of 2011 is allowed to the extent that learned Additional Munsiff shall appoint an Advocate Commissioner to report whether the suit property is lying as one block or whether there are intervening boundaries within the said property. I make it clear that Advocate Commissioner need not embark upon identification of the suit property with reference to the document of title or survey records or by measurement at this stage. (THOMAS P JOSEPH, JUDGE) Sbna/-