IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 OP(C).No. 513 of 2010(O) ------------------------ OS.31/2005 of MUNSIFF COURT,KAYAMKULAM .................... PETITIONERS/DEFENDANTS ------------------------------------------ 1. LALITHAMBIKA, LAVANYAYIL, GURUJI ROAD, VATTIYOORKKAVU, THIRUVANANTHAPURAM FROM LALITHA SADANATHIL, MEMANA MURI, OACHIRA VILLAGE. 2. VIDYA, LAVANYAYIL, GURUJI ROAD, VATTIYOORKKAVU, THIRUVANANTHAPURAM FROM LALITHA SADANATHIL, MEMANA MURI, OACHIRA VILLAGE. 3. DHANYA, LAVANYAYIL, GURUJI ROAD, VATTIYOORKKAVU, THIRUVANANTHAPURAM FROM LALITHA SADANATHIL, MEMANA MURI, OACHIRA VILLAGE. ALL THE ABOVE PETITIONERS ARE REPRESENTED BY THEIR POWER OF ATTORNEY SRI.T.J.RADHAKRISHNAN S/O.JANARDHANA KURUP, LAVANYAYIL, GURUJI ROAD, VATTIYOORKKAVU, THIRUVANANTHAPURAM BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): PLAINTIFF ------------------------ GEETHA, W/O.RAJEEV, T.C. 24/443/1, SANGEETHA NAGAR, THYCAD VILLAGE, THYCADU P.O., 695 014, THIRUVANANTHAPURAM FROM LALITHA SADANATHIL, MEMANA MURI, OACHIRA VILLAGE. ADV. SRI.REJI GEORGE SMT.MANJU RAJAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.513/2010 APPENDIX PETTIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.31/2005 OF THE COURT OF MUNSIFF, KAYAMKULAM EXT.P2 TRUE COPY OF WRITTEN STATEMENT IN OS NO.31/2005 OF THE COURT OF MUNSIFF, KAYAMKULAM EXT.P3 TRUE COPY OF THE REVISION MEMORANDUM PREFERRED BEFORE THE DISTRICT COLLECTOR, KAYAMKULAM EXT.P4 TRUE COPY OF THE JUDGMENT IN WPC 26378/2009 OF THIS COURT EXT.P5 TRUE COPY OF THE REPORTS SUBMITTED BY THE COMMISSIONER EXT.P6 TRUE COPY OF THE OBJECTIONS PREFERRED BY THE PETITIONERS HEREIN EXT.P7 TRUE COPY OF THE OBJECTIONS PREFERRED BY THE RESPONDENT HEREIN EXT.P8 ORDER IN OS 31/2005 DATED 13.10.2010 OF THE COURT OF MUNSIFF, KAYAMKULAM (ORDER CHALLENGED) RESPONDENT'S EXHIBITS: EXT.R1(A) A TRUE COPY OF THE RESURVEY PLAN ISSUED BY THE ASST.DIRECTOR, SURVEY AND LAND RECORDS (RE-SURVEY) CHENGANNUR DATED 17.5.2005 EXT.R1(b) A TRUE COPY OF THE COMMISSION REPORT AND PLAN DATED 28.01.2009 MARKED AS EXTS.C2 AND C2(a) IN OS 31/.2005 ON THE FILE OF MUNSIFF COURT, KAYAMKULAM. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.513 of 2010 -------------------------------------- Dated this the 19th day of July, 2011. JUDGMENT Ext.P8, order passed by the learned Munsiff, Kayamkulam in O.S.No.31 of 2005 deputing an Advocate Commissioner and Surveyor to inspect the property with a direction to conduct local inspection and prepare a report and plan fixing boundaries on the basis of Ext.A1, partition deed and old survey plan and also to show the disputed C schedule way is under challenge. 2. Respondent/plaintiff sued petitioners/defendants, her sisters for fixation of boundary between A and B schedules allotted to them as per partition deed No.1192 of 1991. It is not disputed that as per the said partition deed, plaint A schedule was allotted to the respondent while plaint B schedule was allotted to the petitioners. In paragraph 3 of the plaint respondent laid claim over a pathway which according to her, originate from the Municipal road on the south, proceeded towards north along plaint A and B schedule items and then turned towards west through the plaint B schedule. Respondent claimed right of access through the said plaint C schedule. Petitioners contended that there is no such C schedule way as claimed by respondent either provided as per partition deed No.1192 of 1991 or even as per the original survey records. It is also their contention that in the re-survey, a pathway as described in the plaint C schedule was shown. Aggrieved at that, petitioners have approached the District Collector by way of a statutory revision. But, that revision has not so far OP(C) No.513/2010 2 been disposed of on account of pendency of the suit (Ext.P3 is the revision petition filed before the District Collector, Alappuzha). In the meantime an Advocate Commissioner was appointed to identify properties with reference to the partition deed above stated and the old survey records. That Advocate Commissioner submitted a report identifying the schedule properties with reference to the re-survey plan as well (Exts.C1 and C2). Later the same Advocate Commissioner was appointed to prepare yet another report and plan based on the old survey plan and partition deed and as per that direction the Advocate Commissioner submitted Ext.P5, report which does not disclose the disputed pathway. It is thereafter in the course of trial that learned Munsiff has passed Ext.P8, order as above stated. 3. Grievance of petitioners is that Ext.P8 compels the Advocate Commissioner and Surveyor to identify and report a way which does not exist. Learned counsel has invited my attention to partition deed No.1192 of 1991 and the relief claimed in the plaint that boundary between plaint A and B schedules may be fixed to buttress the argument that no such way as claimed by the respondent exists. According to the learned counsel if any such way existed between plaint A and B schedules, relief of fixation of boundary between A and B schedules would not have been asked for. According to the learned counsel, there are materials to show that there was no such way in between plaint A and B schedules even when their predecessors-in-interest were enjoying the properties. I have heard learned counsel for respondent also. According to the OP(C) No.513/2010 3 learned counsel, the re-survey clearly demarcated plaint C schedule way and when the boundary of plaint A and B schedules is fixed, it will leave between the said properties the disputed way. 4. Having regard to the contentions raised it appears to me that the appropriate course is to direct the Advocate Commissioner to submit a report and plan as directed in Ext.P8 also so that, it is open to the learned Munsiff to decide which of the reports and plans on record could be accepted to resolve the dispute having regard to all relevant facts and circumstances. True, petitioners have challenged the resurvey by way of Ext.P3, (statutory) revision preferred to the District Collector and another application before the Superintendent of Survey. Those proceedings are to be disposed of as early as possible. In that situation keeping further trial of the suit for sometime has become inevitable. Resultantly, this Original Petition is disposed of in the following lines: i. The Advocate Commissioner with the assistance of a Surveyor shall submit a report and plan as directed in Ext.P8 as well, while the earlier reports and plans will remain intact and it is for the learned Munsiff to decide ultimately which of the reports and plans are accepted having regard to the materials on record and all other relevant facts and circumstances. OP(C) No.513/2010 4 ii. The District Collector, Alappuzha is directed to dispose of Ext.P3, revision challenging the resurvey as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment (which shall be made available to that officer by the petitioners immediately). iii. The Superintendent of Survey, Alappuzha shall transmit the application submitted by petitioners against resurvey and the connected records to the District Collector, Alappuzha forthwith to enable the latter dispose of Ext.P3 within the aforesaid time.(petitioners shall give a copy of this judgment to that officer also for compliance). iv. On receipt of the report and plan pursuant to Ext.P8, order learned Munsiff, Kayamkulam shall keep further trial of the suit in abeyance awaiting decision of the District Collector on Ext.P3, revision. Learned Munsiff shall proceed with the trial of the suit on receipt of the said decision. THOMAS P.JOSEPH, Judge. cks