IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 2559 of 2009(D) ------------------------- OS.608/2003 of M.C.,VADAKKANCHERRY .................... PETITIONER(S): --------------- 1. SIVADAS, AGED 52, S/O. BALAVINODINI AMMA, CHERUTHURUTHY VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 2. INDU, W/O. SIVADAS, CHERUTHURUTHY VILLAGE, TALAPPILLY TALUK, THRISSUR DIST. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): --------------- 1. JOHN, S/O. MATHEW, KURIVINGATTUKUZHIYIL HOUSE, NEDUMPURA VILLGE, TALAPPILLY TALUK THRISSUR DIST. 2. MARY JOHN, W/O. JOHN, KURUV INGATTUKUZHIYIL HOUSE, NEDUMPURA VILLAGE, TALAPPILY TALUK, THRISSUR DIST. ADV. SRI.C.DILIP FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Exhibits of petitioners: Ext.P1 Copy of os 608/03 dt.21.11.03 Ext.P2 Copy of written statement in OS 608/03 dt.6/2/04 Ext.P3 Copy of report and plan submitted by adv.commissioner in IA 2074/03 in OS 608/03 Ext.P4 Copy of report and sketch submitted by adv.commissioner in IA 1392/03 in OS 608/03 Ext.P5 Copy of objections submitted by petitioner to Ext.P4 Ext.P6 Copy of IA 505/06 in IA 1392/04 in OS 608/03 Ext.P7 Copy of order passed in IA 506/06 in OS 608/03 //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.(C).NO. 2559 OF 2009 ------------------------------------------ Dated 27th February 2009 JUDGMENT Petitioners are defendants in O.S.608/2003 on the file of Munsiff court, Vadakkancherry. Suit is filed for a permanent prohibitory injunction restraining defendants from trespassing into plaint A and B schedule properties or causing obstruction to their enjoyment of the properties and mandatory injunction in respect of plaint C and D schedule properties. Plaint A schedule property admittedly belongs to the plaintiffs. Plaint B schedule property is a way claimed by the plaintiffs as their exclusive way and covered by their title deed. Defendants also claimed exclusive right over plaint B schedule way contending that it forms part of their property. The Commissioner was appointed and Commissioner submitted report and plan. Petitioners filed I.A.505/2006, an application to set side the report and plan. Under Ext.P7 order learned Munsiff dismissed the application. It is challenged in this petition filed WPC 2559/09 2 under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioners and respondents were heard. 3. Argument of the learned counsel appearing for petitioners is that it is the specific case of plaintiffs that plaint B schedule property forms part of the property belonging to them under their title deed and item No.2 of plaint schedule properties is part of 20 cents excluding alienated portions and without establishing the extent and identity of the alienations, remaining property cannot be fixed. It is pointed out that Ext.P4 report and plan submitted by the Commissioner with the evidence of the Commissioner establish that Commissioner did not fix the property with reference to the boundaries shown in title deed and therefore learned Munsiff should not have accepted Ext.P4 report and at least the report should have been remitted back to the Commissioner for a further report. Learned counsel pointed out that to the south of the survey line in survey No.428 is plot B marked by the Commissioner and it is treated as part of the property of the petitioners, when in fact it belongs to Kalamandalam and does not form part of the WPC 2559/09 3 property of the petitioners and if that property is excluded, property of petitioners should be inclusive of plot G and H as marked by the Commissioner and if so, plaint B schedule property should form part of the property of petitioners and cannot be part of the property of plaintiffs. It is therefore argued that learned Munsiff should have at least remitted the report as the dispute can be resolved only on proper identification of the respective property of the petitioners and respondents. Learned counsel also argued that in Ext.P4 report submitted by the Taluk Surveyor, fact that property of the plaintiffs was not identified with reference to document is made clear and therefore learned Munsiff should not have found that properties were properly identified. Learned counsel appearing for respondents argued that Commissioner has identified the properties properly and there is no reason to interfere with Ext.P7 order, especially when learned Munsiff has made it clear that the question whether properties were correctly identified or not is to be finally settled after recording the evidence. 4. There is force in the submission of the WPC 2559/09 4 learned counsel appearing for petitioners that plaintiffs could succeed in the suit only on establishing that plaint B schedule property forms part of the property belonging to them under their title deed. It is also clear from Ext.P4 report that plaint A or B schedule properties were not identified with reference to the boundaries in the title deed as it is stated that properties cannot be identified with reference to the boundaries. If the properties were not properly identified and it is not established that plaint B schedule property forms part of the property obtained by the plaintiffs, plaintiffs cannot get a decree in the suit. 5. Question is whether in exercise of extra ordinary jurisdiction of this court under Article 227 of Constitution of India, Ext.P7 order is to be interfered. Learned Munsiff has made it clear that question whether plaint A and B schedule properties were properly identified or not is to be finally settled in the suit after recording the evidence. Hence fact that application filed by the petitioners was dismissed will not disentitle them from establishing, at the time of evidence, that properties were not WPC 2559/09 5 properly identified. In the light of these observations in Ext.P7 order, I find it not necessary to interfere with Ext.P7 order. But it is made clear that plaintiffs can be granted a decree only on establishing that plaint B schedule property forms part of the property belonging to them under their title deed. It is also made clear that if after recording the evidence Munsiff finds that properties are not properly identified and for resolution of the dispute proper identification is necessary. Ext.P7 order will not operate as a bar from directing the same Commissioner to identify the property properly or to appoint another Commissioner for proper identification. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.