IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 OP(C).No. 1847 of 2011(O) ------------------------- OS.79/2010 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER ------------------- VIJAYARAGHAVAN, AGED 70, S/O.KALLIKADAVIL RAMAN, MOOTHRATHIKARA DESOM, PARAPPUKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. MR. G.SREEKUMAR (CHELUR) MR. K.RAVI (PARIYARATH) RESPONDENT: --------------- MOOTHRATHIKARA MAHASIVAKSHETHRAM, MOOTHRATHIKARA DESOM, PARAPPUKARA VILLAGE, MUKUNDAPURAM TALUK, REP. BY PRIEST DEVOTEE AND TEMPLE TRUSTEESHIP MANAGEMENT OF VILLAGE TEMPLE SANKARAN NAMBOODIRI, PRIEST S/O.KRISHNAN SOMAYAJIPAD, KIZHAKINIYEDATH ERINJANAVALLY MOOTHRATHIKARA DESOM, PARAPPUKARA VILLAGE, MUKUNDAPURAM TALUK (STATUS DISPUTED) ADV. MR. RENJITH THAMPAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1847 of 2011(O) APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- P1:- A TRUE COPY OF THE WRIT PETITION WITH EXHIBITS IN WP(C) NO.3281/09 BEFORE THIS HON'BLE COURT FILED ON 28.1.09. P2:- A TRUE COPY OF THE PLAINT IN OS NO.79/10 DT.5.2.10 ON THE FILE OF THE SUB COURT, IRINJALAKUDA. P3:- A TRUE COPY OF THE DOCUMENT BEARING NO.304/83 OF THE NELLAYI SRO DT.27/1/83. P4:- A TRUE COPY OF THE WRITTEN STATEMNT IN OS NO.79/10 DT.27/9/10 ON THE FILE OF THE SUB COURT, IRINJALAKUDA. P5:- A TRUE COPY OF THE IA NO2246/10 IN OS NO.79/10 ON THE FILE OF THE SUB COURT IRINJALAKUDA DT.29/6/10. P6:- A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER AND OTHERS AGAINST EXT.P5 DT.4.11.10. P7:- A TRUE COPY OF THE ORDER PASSED IN I A NO.2246/10 IN OS NO.79/10 DT.1.2.11 ON THE FILE OF THE SUB COURT, IRINJALAKUDA. RESPPONDENT'S EXHIBITS :- NIL //TRUE COPY// PA TO JUDGE HARUN-UL-RASHID,J. ------------------------------- O.P.(C). NO. 1847 OF 2011 ------------------------------- DATED THIS THE 29TH DAY OF JUNE, 2011 JUDGMENT The 3rd defendant in O.S.No.79/2010 on the file of the Sub Court, Irinjalakuda is the petitioner herein. Ext.P7 order dated 1.2.2011 passed in I.A.No.2246/2010 is under challenge. The said IA was filed by the plaintiff for issuance of a commission and to call for a report with the aid of surveyor. The IA is opposed by the petitioner herein contending that such measurement is not necessary. 2. After hearing both sides, the court below took the view that the suit for declaration of title and for perpetual injunction require the plaintiff to prove the actual extent, boundary, lie of the property, its location and the alleged act of trespass. The court below observed that the report and plan of the Commissioner with the aid of the surveyor will aid the court in assessing the rival contentions of the parties and therefore, the court below allowed -2- O.P.(C).No.1847/2011 the prayer for issuance of commission with the surveyor's assistance. I do not find any reason to interfere with Ext.P7 order, which was passed after considering the fact that issuance of commission is necessary for a proper adjudication of the dispute between the parties. No grounds are made out to set aside Ext.P7 order. In the result, the original petition is dismissed. The petitioner is at liberty to file an objection to the Commission report and if necessary he can file a petition for setting aside the commission report and plan, or for remitting the same for further assessment. Sd/- HARUN-UL-RASHID, Judge. kcv.