IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 OP(C).No. 3914 of 2011(O) ------------------------- OS.303/2009 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER/PETITIONER/PLINTIFF ------------------------------------------ M.K.KARTHIKEYAN, S/O LATE KARUNAKARAN, AGED 63 YEARS, MANGALATH HOUSE, WARD NO.III, THURAVOOR PANCHAYAT, THIRUMALABHAGOM P.O, CHERTHALA- 688 540. BY ADV. SRI.K.B.DAYAL RESPONDENT/RESPONDENT: --------------------------------- BAVA KAMMATH, S/O PADMANABHA KAMMATH, EDAKAZHIKKAL HOUSE, WARD NO.III, THURAVOOR GRAMA PANCHAYAT, THIRUMALABHAGOM P.O, CHERTHALA- 688 540. BY ADV. SRI.JAGADEESH LAKSHMAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 3914 of 2011(O) ---------------------------------- APPENDIX ----------- PETITIONER(S) EXHIBITS --------------------------------- EXT.P1 PHOTOSTATE COPY OF THE PLAINT FILED BEFORE THE MUNSIFFS COURT, CHERTHALA (OS NO.303/2009) EXTP2 PHOTOSTAT COPY OF IA NO. 1763/2009 IN O.S. NO.303/2009 BEFORE THE LEARNED MUNSIFF'S COURT, CHERTHALA. EXT.P3 PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN OS NO.303/2009 OF THE LEARNED MUNSIFF'S COURT, CHERTHALA. EXT.P4 PHOTOSTAT COPY OF THE COMMISSION REPORT FILED IN O.S.NO.303/2009 BY THE ADVOCATE COMMISSIONER, EXT.P5 PHOTOSTAT COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP(C)NO.769/2011 DTD. 23.09.2011 EXT.P6 PHOTOSTAT COPY OF THE COMMISSION APPLICATION IA NO. 621/2010 IN O.S.NO.303/09 EXT.P7 PHOTOSTAT COPY OF THE MEMO BY WHICH THE PETITIONER PAID BATTA TO THE ADVOCATE COMMISSIONER,IN OS NO. 303/09 EXT.P8 PHOTOSTAT COPY OF THE MEMO BY WHICH THE PETITIONER PAID BATTA TO THE SURVEYOR, IN OS NO.303/09. EXT.P9 PHOTOSTAT COPY OF THE COURT CERTIFICATE ISSUED BY THE LEARNED MUNSIFF'S COURT, IN O.S.NO.303/09 EXT.P10 PHOTOSTAT COPY OF THE LETTER ISSUED BY THE ADDITIONAL TAHSILDAR, CHERTHALA, DATED 11.08.2011 BY NO. 23295/11. EXT.P11 PHOTOSTAT COPY OF THE ORDER ISSUED BY THE LEARNED MUNSIFF'S COURT, CHERTHALA, IN I.A NO. 621/2010, IN O.S.NO 303/09 DTD 24.09.2011 RESPONDENTS' EXHIBITS : NIL ----------------------------- / TRU COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3914 of 2011 --------------------------------------- Dated this 12th day of December, 2011 JUDGMENT Heard counsel on both sides. 2. Ext.P11, order dismissing I.A.No.621 of 2010 in O.S.No.303 of 2009 of the Court of learned Principal Munsiff, Cherthala is under challenge. Petitioner sued the respondent for recovery of possession of plaint B schedule for mandatory injunction to cut and remove certain coconut trees and for other reliefs. Petitioner filed Ext.P6, application to appoint a survey commission to measure the properties. That application was allowed and petitioner was directed to deposit batta. To facilitate measurement, learned Munsiff issued Ext.P9, certificate to obtain survey sketch of properties from the Additional Tahsildar, Cherthala who issued Ext.P10 stating that the survey sketch is not available in the Taluk office. It was also pointed out that the sketch may be available with the District Superintendent of Survey. The suit was posted for trial in the list on 07.12.2011 and I am told that it comes up for hearing this day. Ext.P6, application was dismissed by Ext.P11, order stating that petitioner has not produced plan as directed in spite of giving O.P(C).No.3914 of 2011 -: 2 :- opportunities. 3. Learned counsel contended that a survey commission is necessary since there is a prayer for recovery of possession of plaint B schedule. According to the learned counsel for respondent, petitioner has not done anything to obtain a copy of the survey sketch. 4. True that this Court by Ext.P5, judgment though, was not inclined to issue any direction to the learned Munsiff to dispose of the suit within a time frame, directed that it is open to the petitioner to request learned Munsiff for early disposal of the suit but, that does not mean that a survey commission should not be issued for measurement of properties. Having regard to the nature of the suit I am inclined to think and as the learned Munsiff has allowed Ext.P6, application that the properties are to be measured. In that view of the matter Ext.P11, order is liable to be set aside. Resultantly this original petition is allowed. Ext.P11, order is set aside and I.A.No.621 of 2010 is remitted to the learned Munsiff for fresh decision. Petitioners shall be given sufficient time to produce the sketch required for measurement of the properties. On such time being granted, petitioner shall take O.P(C).No.3914 of 2011 -: 3 :- every effort to get a sketch or its copy for measurement of the properties. Based on that, court below shall pass order on I.A.No.621 of 2010. (THOMAS P. JOSEPH, JUDGE) Sbna/-