IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 OP(C).No. 118 of 2010(O) ------------------------ AGAINST THE ORDER IN & 475/2010 IN OP.370/2001 ofPRL.MUNSIFF COURT,CHERTHALA .................... PETITIONERS: ----------------------------- 1. P.R.SREEDEVI, W/O.GANGADHARAN NAIR, AGED 59, SREEKRISHNA NILAYAM, THURAVOOR NORTH VILLAGE & MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. GANGADHARAN, S/O.KRISHNAN NAIR, AGED 68, DO. DO. BY ADV. DR.V.N.SANKARJEE RESPONDENT: --------------- SMT.SUSEELA ALIAS SULEELAMMA, W/O.NARAYANA PANICKER, AGED ABOUT 58, BHAGHI BHAVAN, PADINJATTUMKARA NORTH MURI & VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.118 of 2010 --------------------------------------- Dated this 30th day of September, 2010 JUDGMENT This original petition is in challenge of Ext.P13, order refusing to set aside reports and plans submitted by the Advocate Commissioner and consequent dismissal of Ext.P11, application. Petitioners filed O.S.No.370 of 2001 in the court of learned Additional Munsiff, Cherthala for a decree for prohibitory injunction to restrain respondents from trespassing into the property described in that suit. Respondents in response filed O.S.No.475 of 2010 in the same court seeking a declaration of right and for prohibitory injunction. There is an order to try the suits jointly. In both the suits, respective plaintiffs filed applications to appoint Surveyor and Commissioner to identify the properties and court appointed an Advocate Commissioner to inspect the properties with the assistance of Taluk Surveyor. Later, learned Munsiff removed the Taluk Surveyor and appointed a retired Surveyor to assist the Advocate Commissioner. After identification of properties by measurement as the Advocate Commissioner would say, Exts.P8 and P10 reports along with plans are produced by the Advocate O.P(C).No.118 of 2010 : 2 : Commissioner. Then came Ext.P11, application by petitioner to set aside those reports and plans. Various allegations are made in Ext.P11, application including that the Advocate Commissioner has purposely helped the respondents who filed O.S.No.475 of 2001. Yet another objection is that there is no proper identification of the property and that even the plans submitted by Advocate Commissioner do not tally. Learned Munsiff found against the contentions and Ext.P11, application was dismissed by Ext.P13, order. Learned counsel asserts that Exts.P8 and P10, reports and plans are liable to be set aside or remitted to the Advocate Commissioner for fresh identification. Learned counsel has asserted the allegations in Ext.P11, application before me. 2. I have gone through the records and Ext.P13, order. It is seen that learned Munsiff has referred to each objection raised by petitioners and found that the objections are not tenable. There is reference to identification of properties as claimed by the parties with reference to the documents of title. One objection raised was that property belonging to one Makayiran Sasi (who is not a party to the proceeding) was not ascertained. But the Advocate Commissioner reported that relevant documents were not furnished by the petitioners though, O.P(C).No.118 of 2010 : 3 : petitioners have a contention that it was actually applied. Learned Munsiff has observed that at any rate those documents are not produced in court (either along with Ext.P11 or before that). Learned Munsiff has also observed that petitioners have not examined the Advocate Commissioner or Surveyor in support of their contentions, the reports and plans are not accepted. Learned counsel states that the witness schedule was filed in the court but, that was not taken into account by the learned Munsiff. 3. As I stated at the beginning, petitioners wanted a decree for prohibitory injunction in respect of the property scheduled in O.S.No.370 of 2001 obviously on the premise that they are in possession of the said property. In suits for injunction based on possession, detailed enquiry regarding title is not required and in cases involving complicated issues of title parties are to be relegated to a comprehensive suit on title. Petitioners have not sought any declaration of title or other relief based on title. They only sought a decree for prohibitory injunction based on their possession. Report of the Advocate Commissioner is only an item of evidence. It is open to the petitioners to adduce evidence regarding possession of property as they claim in O.S.No.370 of 2001. So far as O.S.No.475 of 2001 is concerned, O.P(C).No.118 of 2010 : 4 : respondents who filed the suit have not come up with any contention that Exts.P8 and P10, reports and plans are not acceptable. Petitioners as defendants are resisting O.S.No.475 of 2001. In that case also there is no counter claim made by petitioners based on title claimed by them. In that situation, it is for the respondents who have filed O.S.No.475 of 2001 to show with acceptable plan that property described in O.S.No.475 of 2001 is properly identified and that they have title over the said property as per documents of title. If there is any infirmity in the reports and plans in that regard it will only come to the disadvantage of respondents who filed O.S.No.475 of 2001. This court has also held in Sarojini Vs. Karthiyani Amma (2010(1) KLT SN 17 Case No.19) that interference with the reports and plans submitted by the Advocate Commissioner under Article 227 of the Constitution is warranted only if it is shown that any order passed by the trial court as to whether the report has to be set aside or remitted suffered from such infirmity which if not corrected will result in grave injustice. I stated that so far as petitioners are concerned, their suit is only for decree for injunction based on possession which they can prove by appropriate evidence and that the infirmity in the report and plan O.P(C).No.118 of 2010 : 5 : if any so far as property in O.S.No.475 of 2010 is concerned does not come into disadvantage of petitioners. It is open to the petitioners to examine the Advocate Commissioner and Surveyor at the time of trial and show that respondents are not entitled to the declaration prayed for in O.S.No.475 of 2010. In that situation I am not persuaded to think that there is any infirmity in the report and plan which is required to be interfered at this stage. Original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-