IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 6145 of 2008(F) ------------------------------------- OS.831/2004 OF II ADDL. MUNSIFF COURT.,TRIVANDRUM. .................... PETITIONER: ------------------- C. RAJAMMA, MULLAN VAZHAVILA VEEDU ELIPODU, THIRUMALA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR, ADV. SRI.HARIKUMAR.S. RESPONDENTS: ------------------------ 1. T.CHANDRIKA, MULLAN VAZHAVILA VEEDU ELIPODU, THIRUMALA P.O., THIRUVANANTHAPURAM. 2. GOPALAN, MULLAN VAZHAVILA VEEDU ELIPODU, THIRUMALA P.O., THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 6145 OF 2008 = = = = = = = = = = = = = = = Dated this the 21st day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the II Addl. Munsiff, Thiruvananthapuram in I.A.8911/07 in O.S.831/04 whereby the learned Munsiff has refused to issue a Commission for identification and measurement of the property. A perusal of plaint, Ext.P1 would reveal that the plaintiff is claiming title to the property on the basis of a partition deed of 2600/50 as per which the property described in 'D' schedule was allotted to Sri.Masilamony . Then it is contended that the said Masilamony by executing the Will bequeathed the said property to the plaintiff and thereby the plaintiff claims title to the property under the Will. It is the case of the plaintiff that the defendants had trespassed into the property and had constructed a shed and therefore the suit is filed for a mandatory injunction to remove the unauthorized construction. W.P.C 6145 OF 2008 -:2:- 2. The defendants in their written statement would contend that the plaintiff does not have any title to the property. According to them they have entered into the plaint puramboke land in the year 1985 and put up a small building with two rooms and that they are residing in the said premises thereafter. Or in other words the definite contention of the defendants is to the effect that the plaintiff is not having title to the property and the shed which they have constructed is situated in a Government puramboke land and so the plaintiff is not entitled to any relief. So the question for determination is whether the shed is situated in a property belonging to the plaintiff or in the puramboke land as contended by the defendants. When such is the circumstances, it is absolutely necessary to have the property measured in the light of the document relied upon by the plaintiff to establish his case. I am afraid that the Court below erred in not allowing that application which was absolutely necessary for a proper decision of the case. Therefore the order under challenge is set aside and the W.P.C 6145 OF 2008 -:3:- application for Commission is allowed and the Court below is directed to issue a Commission on usual terms with the assistance of a surveyor and permit both sides to file detail work memo before the Commissioner to inspect the property and proceed in accordance with law. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-