IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 14606 of 2009(O) --------------------------------------- (OS.NO.75/2008 OF MUNSIFF COURT, VADAKKANCHERRY) .................... PETITIONER: ------------------- SINDHU, W/O. HARIDAS, AGED 30 YEARS, CHAZHIKULAM HOUSE, KUNDANOOR P.O., KUMBALANGAD, THRISSUR. BY ADVS. MR.V.M.KRISHNAKUMAR, SMT.P.R.REENA. RESPONDENT: ---------------------- JOHNEY, S/O. THOMAS, PANENGADAN HOUSE, KUMBALANGAD DESOM, WADAKKANCHERY. R1 BY ADV. MR.G.SREEKUMAR (CHELUR), SMT.PREETHY KARUNAKARAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14606/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT, O.S. NO. 75/08 BEFORE THE MUNSIFF COURT, WADAKKANCHERY. EXT.P.2: COPY OF THE COMMISSIONER'S REPORT AND PLAN IN O.S. NO. 75/08 DTD. 09/04/2008. EXT.P.3: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN O.S. NO. 75/2008. EXT.P.4: COPY OF THE ORDER IN I.A. NO. 2278/08 DTD. 21/01/09 IN O.S. NO. 75/08. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.14606 of 2009 - O --------------------------------- Dated this the 20th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “To call for the records leading to Ext.P4 and set aside the same.” 2. Plaintiff in O.S.No.75/2008 on the file of the Munsiff Court, Wadakkanchery, is the petitioner. Suit is one for injunction and the respondent the defendant. Respondent/defendant in his written statement has disputed among other contentions the description of the plaint property. After a commission was taken out by the plaintiff in which a report and rough plan was prepared, the defendant moved an application for measuring out the suit property to substantiate his contention that the plaint schedule shown by the plaintiff suffered from misdescription. The application was objected to by the plaintiff and negativing that objection survey measurement of the property as desired by the defendant was allowed by the learned Munsiff. Ext.P4 is the copy of that order. Impeaching the propriety and correctness of Ext.P4 order, petitioner/plaintiff has W.P.(C).No.14606 of 2009 - O 2 filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Learned counsel for the petitioner submitted that already there is a report prepared and filed by the commissioner and so much so, appointment of another commissioner as desired by the respondent/defendant to measure out the property with the assistance of a surveyor was not necessary and the court below went wrong in Ext.P4 order. Ext.P3 is the copy of the written statement filed by the respondent/defendant resisting the suit claim. Perusal of Ext.P3 shows that the defendant has raised a specific contention challenging the description of the suit property. In a suit for injunction, the burden is on the plaintiff to identify the suit property to claim a decree in the suit. No burden is cast upon the defendant to identify the suit property for the reason that he has challenged its identification. So much so, if the plaintiff is satisfied with the rough sketch already prepared by the commissioner, normally, on the basis of which no decree for the relief claimed could be granted, it is the risk of W.P.(C).No.14606 of 2009 - O 3 the plaintiff and not that of the defendant. There was no necessity for the court below to entertain the application from the defendant to measure out the suit property over which the plaintiff claimed decree for injunction. Ext.P4 order is set aside, leaving the risk for nonmeasuring of the suit property to the plaintiff despite the objection taken by the defendant as to the misdescription of that property. The writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-