IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 23597 of 2010(O) -------------------------- AGAINST THE ORDER DATED 22/05/2010 IN IA.2719/2008 IN OS.258/2006 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONER(S): RESPONDENTS NO.1 TO 8/DEFENDANTS NO.1 TO 8: ------------------------------------------------------------------------------------------------------ 1. PAVANGAD NIRMAL @ P.NIRMAL KUMAR, S/O. PAMANABHAN,PAVANGAD HOUSE, PUTHYANGADI AMSOM & DESOM, PUTHIYAGADI.P.O, KOZHIKODE-21. 2. PAVANGAD SHAJI @ MRIDUL, (P.SHAJI) S/O. PADMANBHAN, PAVANGAD HOUSE, PUTHYANGADI AMSOM & DESOM, PUTHIYAGADI.P.O, KOZHIKODE-21. 3. PAVANGAD BEHIRSHAN@ P.BEHIRSHAN, S/O PADMANABHAN, PAVANGAD HOUSE, PUTHYANGADI AMSOM & DESOM, PUTHIYAGADI.P.O, KOZHIKODE-21. 4. PAVANGAD DILEEP KUMAR @ P.DILIP, S/O. PADMANABHAN, PAVANGAD HOUSE, PUTHYANGADI AMSOM & DESOM, PUTHIYAGADI.P.O, KOZHIKODE-21. 5. PAVANGAD RANJITH @ P.RANJITH, S/O. PADMANABHAN, PAVANGAD HOUSE, PUTHYANGADI AMSOM & DESOM, PUTHIYAGADI.P.O, KOZHIKODE-21. 6. PAVANGAD SURESH @ P.SURESHAN, S/O. SREEDHARAN PAVANGAD HOUSE, PUTHYANGADI AMSOM & DESOM, PUTHIYAGADI.P.O, KOZHIKODE-21. Kss ..2/- ..2.... WPC.NO.23597/2010 O 7. PAVANGAD ANIL @ P.ANIL KUMAR, S/O. SREEDHARAN, PAVANGAD HOUSE, PUTHYANGADI AMSOM & DESOM, PUTHIYAGADI.P.O, KOZHIKODE-21. 8. PAVANGAD GIRISH, @ P.GIRISH, S/O. SREEDHARAN, PAVANGAD HOUSE, PUTHYANGADI AMSOM & DESOM, PUTHIYAGADI.P.O, KOZHIKODE-21. BY ADVS. SRI.SAJAN VARGHEESE K., SRI.LIJU. M.P. RESPONDENT(S): PETITIONERS/PLAINTIFFS:RESPONDENTS 8 TO 10/ DEFENDANTS NO. 9 TO 11: ---------------------------------------------------------------------------- 1. PAVANGAD SREENIVASAN, S/O.KUNHIKORU VAIDYAN, ANNAMMA HOUSE, PUTHIYANGADI AMSOM & DESOM, PUTHIYANGADI.P.O., KOZHIKODE-21. 2. PAVANGAD SUBRAMANIAN, S/O. KUNHIKORU VAIDYAN, GOKULAM, PUTHIYANGADI AMSOM & DESOM, PUTHIYAGADI.P.O, KOZHIKODE-21. 3. PAVANGAD MANILAL, S/O. BHARATHAN, PAVANGAD HOUSE, PUTHIYAGADI.P.O, KOZHIKODE-21. 4. PAVANGAD SANTHILAL, S/O. BHARATHAN, PAVANAGD HOUSE,PUTHIYAGADI.P.O, KOZHIKODE-21. 5. SINDHU AJITHKUMAR, C/O. NARAYANAN MASTER, PANKAJ NIVAS,BANK ROAD, PUTHIYARAKKARA.P.O.,VATAKARA-11. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.23597 of 2010 --------------------------------------- Dated this 28th day of July, 2010 JUDGMENT Defendant Nos.1 to 8 in O.S.No.258 of 2006 of the court of learned Sub Judge, Kozhikode are the petitioners before me challenging Ext.P9, order and praying to dismiss Ext.P7, application whereby respondents sought a direction from the learned Sub Judge to the Advocate Commissioner to get the assistance of Taluk Surveyor for identification of the property. Respondents claimed that properties belonged to Pavangad Illam which was disrupted by the aggression of Tippu Sulthan and only two members survived in that Illam - Unnimaya and her mother. Unnimaya was married to Chirukantan, a Thiyya by caste while his brother, Raman married a Thiyya girl. Unnimaya had a premature death after giving birth to three sons. Respondents claim to be descendants of Unnimaya and Chirukantan later married another Thiyya woman. It is the case of respondents that plaint B schedule belonged to Pavangad Illam and by law of succession it devolved on them. They alleged that petitioners are in unlawful possession of the said property and wanted that property to be recovered. Petitioners disputed genealogy stated W.P.C.No.23597 of 2010 : 2 : in plaint A schedule and claimed that respondents have no right over the property. At that stage, petitioners filed Ext.P4, application under order VII Rule 11 of the Code of Civil Procedure (for short, “the Code”) requesting the court to reject the plaint for the reasons that genealogy stated in plaint A schedule is not correct, no material whatsoever is produced to establish the same and that even plaint B schedule property sought to be recovered is not property described so as to identify the same. That application was disposed of by learned Sub Judge Vide Ext.P6, order stating that contention put forth by petitioners that there was no proper description of plaint B schedule to identify the same seemed to be credible but for that reason plaint cannot be rejected, at any rate without giving opportunity to the respondents to establish their case. In the meantime Advocate Commissioner inspected the property and reported that he is unable to identify the same. It is while so, that respondents filed Ext.P7, application to identify the property and sought a direction to the Advocate Commissioner to get assistance of the Taluk Surveyor. That application was opposed by petitioners disputing devolution of right claimed by respondents and identity of plaint B schedule. Learned sub Judge has allowed Ext.P7,application by Ext.P9, order and has directed both parties to submit panel of retired surveyors so that one among them could be appointed to W.P.C.No.23597 of 2010 : 3 : assist the Commissioner. That order is under challenge. Learned counsel for petitioners contended that it is without producing any document or any other material that claim over plaint B schedule by devolution is made by the respondents. According to the learned counsel, claim made by respondents relate to something that transpired centuries back regarding which there is no possibility of any evidence, oral or documentary being let in and in such a situation plaint ought not have been taken on file. It is also argued that in the circumstances court below was not correct in allowing Ext.P7, application. On going through Order VII Rule 11 of the Code, I am not inclined to think that for the reasons stated by learned counsel plaint ought to have been rejected. Question whether respondents are able to produce evidence in whatever form it be to prove devolution of right claimed by them is a different matter. That, the suit may ultimately result in a dismissal is not a ground to reject the plaint at the threshold. At any rate it is not necessary for me to pronounce verdict on those questions at this stage. Learned Sub Judge has appointed an Advocate Commissioner to identity the property. Assistance of a Surveyor is essential. As per Ext.P9, order learned Sub Judge has accepted request of respondents to issue direction to the Advocate Commissioner to seek assistance of a surveyor and for W.P.C.No.23597 of 2010 : 4 : the said purpose has directed both sides to produce panel of retired surveyors. Having regard to the facts and circumstances of the case I do not find reason to interfere with Ext.P9, order. Of course it is open to the petitioners to request learned Sub Judge to expedite the proceeding so that the litigation does not continue for long and it comes to a logical conclusion. Revision petition is disposed of as above. (THOMAS P JOSEPH, JUDGE) Sbna/-