IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 OP(C).No. 89 of 2010(O) ----------------------- OP.49/2006 of MUNSIFF COURT, PAYYANNUR .................... PETITIONERS -------------------- 1. THIRUVITHAM VEETTIL MUHAMMADALI, S/O.AYISSA, AGED 48 YEARS, BUSINESS, RESIDING AT MANIYATTU AMSOM AND DESOM OF HOSDURG TALUK. 2. THIRUVITHAM VEETTIL MOIDU, S/O.AYISSA, AGED 38 YEARS, BUSINESS, RESIDING AT MANIYATTU AMSOM AND DESOM OF HOSDURG TALUK. 3. THIRUVITHAM VEETTIL MUHAMMED FIRDOUZ, S/O.AYISSA, AGED 31 YEARS, BUSINESS, RESIDING AT MANIYATTU AMSOM AND DESOM OF HOSDURG TALUK. BY ADV. MR. MAHESH V RAMAKRISHNAN RESPONDENTS: --------------- 1. PAYYANUR WHITE CITY SALAFI CENTER, REP. BY ITS CHAIRMAN T.A.MUHAMMAD KUNHI, S/O.ASSAINAR, AGED 50 YEARS, MEDICAL PRACTITIONER, RESIDING AT VAYAKKARA AMSOM AND DESOM, P.O.CHERUPUZHA. 2. SECRETARY, M.T.P.MUHAMMADALI, S/O.ABDULLA, AGED 60 YEARS, BUSINESS, RESIDING AT VELLUR AMSOM AND DESOM, P.O.VELLUR. R1 AND R2 BY ADV. MR. M.SASINDRAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 89 of 2010(O) APPENDIX -------------- PETITIONER'S EXHIBITS ---------------------------------- P1:- TRUE COPY OF THE PLAINT DATED 30.3.06 IN O.S.NO.49/06 OF MUNSIFF COURT, PAYYANNUR P2:- TRUE COPY OF THE WRITTEN STATEMENT DATED 8.8.06 FILED BY THE DEFENDANTS IN O.S.NO.49/06 OF MUNSIFF COURT, PAYYANNUR. P3:- TRUE COPY OF THE COMMISSIN REPORT AND SKETCH DATED 10.4.06 IN O.S. NO.49/06. P4:- TRUE COPY OF THE PETITION I.A.789/06 DATED 14.6.06 IN O.S.NO.49/06. P5:- TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A NO.1590/06 IN O.S.NO.49/06 P6:- TRUE COPY OF THE REPORT AND PLAN DATED 17.2.10 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.NO.49/06. P7:- TRUE COPY OF THE AFFIDAVIT DATED 6.3.10 FILED IN SUPPORT OF I.A.NO.659/10 IN O.S.NO.49/06. P8:- TRUE COPY OF THE ORDER DATED 3.9.10 IN I.A.NO.659/10 IN O.S.NO.49/06. P9:- TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE PETITION FOR AMENDMENT DATED 30.9.10 IN O.S.49/06. RESPPONDENT'S EXHIBITS :- NIL. //TRUE COPY// PA TO JUDGE THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ O.P.(C). No.89 of 2010 ~~~~~~~~~~~~~~~~ Dated this the 4th day of July 2011 J U D G M E N T This original petition is in challenge of Ext.P8, order on I.A.No.659 of 2010 in O.S.No.49 of 2006 of the court of learned Munsiff, Payyanur. Petitioners/plaintiffs filed the suit for a decree, originally of prohibitory injunction against respondents trespassing into the suit property, mandatory injunction to direct respondents restore two boundary stones (allegedly) removed by them encroaching into about 1.8 meter of land in the suit property which petitioners claimed, belong to them. In the course of the suit petitioners filed application for issuance of a commission. The Advocate Commissioner inspected property and submitted Ext.P6, report. In that report it is stated that the suit property was identified and the same is comprised in Re-Survey No.32/1B2C of Payyanur Village and that O.P.(C). No.89 of 2010 -: 2 :- property of respondents is situated on its east. Commissioner has shown the compound wall on the eastern boundary of the suit property as 'BC' line and the northern boundary as 'AB' line. In the plan produced along with the report Commissioner has shown plot 'AB' as the undisputed portion in the possession of petitioners. The portion pointed out by petitioners in Re-Survey No.32/1BCB is shown as 'ADGH' in the said plan. The disputed property is shown as 'BECF' and the building of petitioners is shown as 'IJKL'. According to the petitioners, the said report is not correct in that the Commissioner has not shown correctly the position of the wall. Construction made subsequent to the institution of suit by respondents and encroaching into this suit property are not specifically marked in the plan. Yet another objection is that marking of 'IL' and 'GH' lines is not proper. Learned Munsiff after considering the objections dismissed I.A.No.659 of 2010 but observing that it is open to the petitioners to clarify the objections raised and if O.P.(C). No.89 of 2010 -: 3 :- necessary examine Commissioner during the trial. Learned counsel for petitioners contends that in the light of objections raised in Ext.P7, application it was appropriate that Ext.P6, report was remitted to the Advocate Commissioner to submit fresh plan and report. It is also pointed out by learned counsel that during the pendency of the suit an application was filed to incorporate a relief of recovery of possession (of the allegedly trespassed area). Learned counsel for respondents contend that no interference is called in Ext.P8, order. 2. Having heard both sides and going through Ext.P6, report and plan and also considering the contentions raised by petitioners in Ext.P7, application it appears that proper course is to allow petitioners to take out a commission for preparation of a plan and report in the light of objections raised in Ext.P7 without interfering with Ext.P6, report and plan at this stage. Commissioner shall prepare a report and plan in the light of objections raised in O.P.(C). No.89 of 2010 -: 4 :- Ext.P7 and submit the same before the court. It is for the trial court to decide which of the reports and plans is to be accepted in the course of the trial. Resultantly this original petition is allowed and Ext.P8 order is set aside. Ext.P7 application is allowed in the following lines :- (1)It is open to the petitioners/plaintiffs to take out a commission with the assistance of a Surveyor to get a plan and report prepared in accordance with the objections they are raised in Ext.P7, application. (2)As far as possible court below shall appoint the commissioner and Surveyor who prepared Ext.P6 report and plan. (3)Court below shall fix the bata payable to the Commissioner and Surveyor by the petitioners. (4)The trial court shall decide which of the reports and plans is acceptable while deciding the suit. (5)It is made clear that I have not expressed any opinion O.P.(C). No.89 of 2010 -: 5 :- regarding the acceptability of contentions raised by petitioners in Ext.P7 application or the acceptability or otherwise of Ext.P6, report and plan. THOMAS P. JOSEPH, JUDGE. Jvt