IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 OP(C).No. 6 of 2010(O) ---------------------- AGAINST THE ORDER DATED 13/09/2010 IN IA.1461/2010 IN OS.256/2008 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER: -------------------- GEROGE MATHEW , AGED 48 YEARS, S/O.MATHEW, VELLARAMALA HOUSE, CHELAKKOMPU KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS: --------------- 1. VARKEY VARGHESE, S/O.VARGHESE, VELLAKKALUNKALAYA PARAYANKUNNEL HOUS E,CHELAKKOMPU KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY-686101 2. JOHN JOSE, S/O.JOHN,PALLITHAZHE HOUSE, CHELAKKOMPU KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY-686101 3. GEORGE, OTTAPLACKAL HOUSE,CHELAKKOMPU KARA, NEDUMKUNNAM VI LLAGE, CHANGANACHERRY-686101 4. REJI, S/O.CHERIAN, OTTAPLACKAL HOUSE,CHELAKKOMPU KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY-686101 5. JOHN, VELUPURAYIDATHIL HOUSEL CHELAKKOMPU KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY-686101 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.6 of 2010 --------------------------------------- Dated this 23rd day of September, 2010 JUDGMENT Respondent No.1 has filed O.S.No.256 of 2008 in the court of learned Munsiff, Changanacherry for fixation of boundary of the suit property, described as 50 cents in old survey No.364/5 of Nedukunnam Village which respondent No.1 claimed, he got assignment from the Land Tribunal as per patta issued in the year 1972. The suit was resisted by petitioner and respondent Nos.2 to 5 who claimed that the suit property forms part of plaint B schedule property in O.S.No.283 of 1987 where respondent No.1 was defendant No.8. Advocate Commissioner, assisted by the Surveyor inspected the property and submitted report dated 05-11-2009 and plan (Ext.P6 and P6(a) are copy of the said report and plan) identifying the property as referred to therein. For about an year, nothing transpired. Petitioner and others filed Ext.P10, application (I.A.No.1461 of 2010) on 08-09-2010 to appoint an Advocate Commissioner and Surveyor to identify the property. Learned Munsiff posted the case for trial in the list and evidence of respondent No.1/plaintiff was recorded. Advocate Commissioner and Surveyor who prepared Exts.P6 and P6(a) O.P(C)..No.6 of 2010 : 2 : were also examined. Recording of evidence of petitioner started on 14-09-2010 and two witnesses were examined. Petitioner and respondent Nos.2 to 5 filed objection to Exts.P6 and P6(a), report and plan on 14-09-2010. On Ext.P10, application learned Munsiff has passed Ext.P12, order dismissing the said application. That order is under challenge in this petition. Learned counsel for petitioner contended that a perusal of the relevant documents produced along with this petition would show that entitlement of respondent No.1 as per patta of the year 1972 was not 50 cents as scheduled in the plaint but only 20 cents. It is also contended that it is not with reference to the resurvey records that Advocate Commissioner and Surveyor has measured the property and submitted Ext.P6 and P6(a). Learned counsel has made specific reference to Ext.P7, resurvey plan in support of his contention that petitioner is not owning or possessing that much property as stated in the plaint schedule. Learned counsel for respondent No.1 contends that Exts.P6 and P6(a) were submitted by the Advocate Commissioner and Surveyor as early as on 05-11-2009 and Ext.P10, application to appoint a fresh commission came only on 08-09-2010 but, there is no request to set aside or remit Exts.P6 and P6(a). It is also contended that neither petitioner nor O.P(C)..No.6 of 2010 : 3 : any of the contesting defendants have made any counter claim or sought any other relief against respondent No.1. 2. As pointed out earlier, Exts.P6 and P6(a) are dated 05-11-2009 and even Ext.P9, objection to that report and plan came only on 14-09-2010 ie, almost an year after Exts.P6 and P6(a) were filed in court. It is relevant to note that even in Ext.P9 there is no prayer to set aside or remit Exts.P6 and P6(a) instead, petitioner was rest-contended with his objection to the report and plan in the way stated in Ext.P9. The application for appointment of a fresh Commissioner came only on 08-09-2010 after the case was included in the list for trial. Now the situation is that evidence of respondent No.1 is over and atleast recording of evidence of petitioner has started. Learned counsel for respondent No.1 would say that case is posted for hearing on 24-09-2010. Whatever that be, recording of evidence has started. 3. I must also bear in mind that respondent No.1 is seeking fixation of boundary obviously based on his title and possession over the suit property. It is for him to show his title and possession of the property referred to in the plaint schedule. If any portion of the suit property is found to be in the possession of any of the contesting defendants obviously respondent No.1 O.P(C)..No.6 of 2010 : 4 : may not be entitled to get fixation of boundary since as held by this court in Bapputty @ Saidali & Ors. Vs. Cheriakutty @ Veerankhani Rawther (1990(1) KLJ 218 at pr.6) boundary could be fixed only after settling all disputes concerning title and possession. Petitioner or any of the other defendants have not made any counter claim. They simply seek a dismissal of the suit. Hence whatever inadequacy or infirmity the report and plan (Exts.P6 and P6(a)) have, that affects claim of respondent No.1. Therefore, even in the absence of fresh inspection by the Advocate Commissioner with the assistance of Surveyor, it is open to the petitioner to show that Exts.P6 and P6(a) are not acceptable for any reason whatsoever. 4. The contention now advanced is that 50 cents scheduled in the plaint forms part of plaint B schedule in O.S.No.283 of 1987 concerning which there is already a report and plan and the present prayer is to depute the Advocate Commissioner who submitted Exts.P6 and P6(a) to measure the property in accordance with decree schedule and plan in O.S.No283 of 1987 obviously, to convince the court that entitlement of respondent No.1 is not for the entire suit property scheduled in the plaint. Even without deputing an Advocate O.P(C)..No.6 of 2010 : 5 : Commissioner in this case, it is open to the petitioner and other contesting defendants, if they are so advised, to prove the report and plan in O.S.No.283 of 1987 in the manner provided under law and substantiate their contention raised in Ext.P9, objection. It is not as if at this stage as requested by the petitioner, an Advocate Commissioner is again to be deputed to measure the property in accordance with the decree schedule and plan in O.S.No.238 of 1987. I do not find reason to interfere with the order under challenge. If necessary, it is open to the petitioner to challenge correctness of Ext.P12, order in case he happens to prefer appeal against the judgment and decree of the trial court. Original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-