IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 OP(C).No. 1136 of 2010(O) ------------------------- AGAINST THE ORDER DATED 13/10/2010 IN IA 977/2009 IN AS.15/2006 of SUB COURT, CHERTHALA OS.797/2003 of PRINCIPAL MUNSIFF COURT, CHERTHALA .................... PETITIONER ------------------------------ GEORGE.A.J, S/O.JACOB, AGED 63, ADIMURI HOUSE, ODAMPILLY LANE, THOPPUMPADY, KOCHI-5. BY ADV. SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S): --------------- 1. AJEESH KUREETHARA, SARASWATHI VILAS, ERAMALLOOR MURI, EZHUPUNNA VILLAGE-688 548. 2. PRASANNAKUMARI OF DO. DO. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1136 of 2010 -------------------------------------- Dated this the 14th day of December, 2010. JUDGMENT Ext.P5, order passed by the learned Sub Judge, Cherthala in A.S.No.15 of 2006 refusing to appoint an Advocate Commissioner as prayed for in I.A.No.977 of 2009 to identify the suit property is under challenge. 2. Petitioner sued respondent for a decree for prohibitory injunction claiming that he is in possession of the property as per Ext.A1, sale deed marked in the trial court. Respondent contended that there was no such sale deed and that the document was executed merely as a security for a loan. It was also contended that the document is sham. Though learned Munsiff found against the contention that the document is sham, the suit was dismissed for other reasons. That dismissal is under challenge in A.S.No.15 of 2006. Pending appeal petitioner filed I.A.No.977 of 2009 as aforesaid. 3. It was appropriate, as held by this Court on various occasions that learned Sub Judge considered I.A.No.977 of 2009 at the time the appeal itself was heard and that application was disposed of along with the appeal. However, petitioner has invited an order on I.A.No.977 of 2009 even before hearing of the appeal. Now question is whether the said order is correct. Learned counsel submitted that in the connected case this Court has permitted the disputed property to be identified vide Ext.P4, judgment. OP(C) No.1136/2010 2 4. That ofcourse was a different suit where the trial court was yet to decide the contentious issues. It is seen from Ext.P1, judgment of the trial court in the present case that the suit was dismissed as petitioner was not able to prove his claim of possession. It is also seen from Ext.P1 that petitioner when examined as PW1 had stated as if there was no clear demarcation between the 13 cents covered by Ext.A1 and the remaining property belonging to the respondent. In such a situation an application for appointment of Advocate Commissioner as prayed for (to measure the suit property and fix its boundaries with the assistance of a Surveyor) was not allowable particularly as the suit is merely for injunction based on possession and not for fixation of boundary. Learned Sub Judge has also observed that a report as requested for is not necessary for disposal of the appeal. In the circumstances I do not find reason to interfere. Learned Sub Judge is however directed to dispose of the appeal untrammeled by any of the observations contained in the impugned order or this judgment. Petition is disposed of as above. THOMAS P.JOSEPH, Judge. cks