IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 OP(C).No. 16 of 2010(O) ----------------------- IA NO.248/2010 IN OS.127/2008 of SUB COURT,KOCHI .................... PETITIONERS: ------------------------------- 1. P.K.KUNJUMON, AGED 62, S/O.KUNJU MOHAMMED, PARUCHETHIL HOUSE, DOOR NO.23/579-B, K.M.P.NAGAR, PALLURUTHY P.O., COCHIN-682 006, PALLURUTHY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 2. NIXON XAVIER, AGED 42, S/O.XAVIER CHATHANAVEETTIL HOUSE, DOOR NO.3/534, MATTANCHERRY P.O., MATTANCHERRY VILLAGE, KOCHU TALUK, ERNAKULAM, COCHIN-682 002. BY ADV. SRI.S.SREEKUMAR SRI.K.C.ELDHO RESPONDENT(S): --------------- 1. A.ABDUL RASHEED, AGED 61, S/O.ABDUL AZEEZ, CC NO.1/431, BURGER STREET, FORT COCHIN, COCHIN-682 001, FORT COCHIN VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 2. ABEL ANTONY ROBERT, S/O.ROBERT BASTIN AGED 67, POLLEPARAMBIL HOUSE, CC NO.1/54, FORT VYPIN, VYPIN ISLAND, FORT COCHIN, PIN -682001. 3. SEBASTIAN ROBERT, S/O.ROBERT BASTIN, POLLEPARAMBIL HOUSE, CC NO.1/54, FORT VYPIN, VYPIN ISLAND, FORT COCHINM PIN 682 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.16 of 2010 -------------------------------------- Dated this the 24th day of September, 2010. JUDGMENT Defendant Nos.2 and 3 in O.S.No.127 of 2008 of the court of learned Sub Judge, Kochi are the petitioners before me challenging Ext.P6, order appointing Advocate Commissioner to identify the property with the assistance of the Taluk Surveyor on a request made by respondent No.1/plaintiff vide I.A.No.248 of 2010. Grievance of petitioners is that notwithstanding that there was no dispute regarding identity of the property, respondent No.1 has filed the said application with the only object of protracting the litigation. 2. Petitioner No.1 filed R.C.P.Nos.18 of 2007 and 19 of 2007 before the Rent Control Court against respondent No.1 for eviction under Act 2 of 1965. Respondent No.1 disputed title of petitioner No.1 and claimed title for himself by adverse possession. By Ext.P1, order Rent Control Court relegated the parties to the Civil Court for a decision holding that denial of title is bonafide. Respondent No.1 filed the present suit seeking a declaration of his title by adverse possession in respect of six cents and a two storied building bearing door Nos.1/431 and 1/432. Respondent No.1 claimed that he assumed possession of the property for himself without the junction of others on 12.04.1984, reconstructed the building and since then is in possession and enjoyment of the property adverse to the title of petitioners and other contesting OP(C) No.16/2010 2 defendants. Petitioners and others filed written statement denying claim of respondent No.1. While so respondent No.1 filed I.A.No.248 of 2010 to appoint an Advocate Commissioner to identify the suit property with the assistance of Taluk Surveyor. That application was opposed by the petitioners on the ground that since there is no dispute regarding identity of the property, a survey commission is not required. That objection was not accepted by learned Sun Judge who allowed the application (I.A.No.248 of 2010) vide Ext.P6, order. Learned counsel contends that there is no dispute regarding identity of property required to be settled by a survey commission. 3. I have gone through Exts.P2 and P3, plaint and written statement. In the plaint schedule, property in respect of which declaration is sought for is stated as six cents and a two storied building bearing door Nos.1/431 and 1/432. In paragraph No.5 of the plaint after referring to a document executed by petitioners and other defendants describing the extent of the property as five cents, respondent No.1 stated that actual extent of the property is six cents and that it is to mislead the authorities that petitioners and others described extent of property as five cents in the said document. Answering that allegation, in paragraph No.7 of the written statement petitioners and others contended that the said allegation is not correct, allegation that actual extent of the property is six cents is not correct and that actual extent of the property is only five cents. Thus there is a dispute as to the extent of the property – whether OP(C) No.16/2010 3 it is six cents or five cents as petitioners and others asserted. It is in that circumstances that respondent No.1 was constrained to file application for identification of property with the assistance of a Taluk Surveyor, That, respondents have produced a certificate of the Village Officer showing the extent of the property as five cents cannot by itself be decisive. Respondent No.1 should be given opportunity to identify the property. In the circumstances there is little reason to interfere with the order under challenge. But I direct the learned Sub Judge to issue necessary direction to the Advocate Commissioner and Taluk Surveyor to execute their work and submit report in that regard at the earliest so that the suit could be disposed of without further delay. Writ Petition is disposed of as above. THOMAS P.JOSEPH, Judge. cks