IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP(C).No. 2173 of 2011(O) ------------------------ I.A. 376/2011 IN OS.66/2008 of MUNSIFF COURT, CHITTUR .................. PETITIONER : ------------------- KAJA MOIDEEN S/O. AHAMMED RAWTHER, AGED 53 YEARS, RESIDING AT ATTAYAMPATHY, MUTHALAMADA NO.1 VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT : ----------------------- P.KOYA, AGED 63 YEARS, RESIDING AT ATTAYAMPATHY, MUTHALAMADA NO.1 VILLAGE CHITTUR TALUK, PIN -678 101. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 2173 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PLAINT IN O.S. NO. 66/2008 BEFORE MUNSIFF COURT, CHITTUR. EXT.P2 : COPY OF THE WRITTEN STATEMENT TO EXT.P-1 FILED BY RESPONDENT BEFORE MUNSIFF COURT, CHITTUR. EXT.P3 : COPY OF COMMISSION REPORT IN O.S.66/2008 DT. 28-1-2011. EXT.P4 : COPY OF THE PLAN SUBMITTED BY COMMISSIONER IN O.S. NO. 66/2008. EXT.P5 : COPY OF THE OBJECTION TO COMMISSION REPORT AND PLAN FILED BY PETITIONER IN O.S. 66/2008. EXT.P6 : COPY OF I.A. 376/2011 TO SET ASIDE EXT.P3 & P4 FILED BY PETITIONER. EXT.P7 : COPY OF ORDER DATED 31-5-2011 IN I.A. NO. 376/2011 IN O.S. NO. 66/2008 OF MUNSIFF COURT, CHITTUR. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No. 2173 of 2011 --------------------------------------- Dated this 08th day of July, 2011 JUDGMENT Petitioner is the plaintiff in O.S.No.66 of 2008 of the Court of learned Munsiff, Chittoor. That suit is for a decree for prohibitory injunction to restrain the respondent from trespassing into the suit property. 2. In the course of the suit petitioner filed application for appointment of an Advocate Commissioner to inspect the property with the assistance of a Surveyor. That application was allowed and a Retired Surveyor was appointed to assist the Advocate Commissioner. After measurement of the properties the Advocate Commissioner submitted report and plan. Petitioner filed I.A.No.376 of 2011 under Order XXVI Rule 9 of the Code of Civil Procedure to set aside that report and plan. Grievance of petitioner is that the Commissioner has not measured the 79 cents scheduled in the plan appended to his report and that statement of the Commissioner that property excluding 58½ cents in old survey No.231/3C is lying as cannal and panchayath road is not correct. Before the learned Munsiff, the Advocate Commissioner, surveyor and the village officer were O.P(C).No.2173 of 2011 -: 2 :- examined and Exts.C1 and C2 and B1 were marked. Learned Munsiff directed that since the suit is one for injunction where the issue primarily concerned is possession and that if at all there is any irregularity in the report of the Advocate Commissioner it is open to the petitioner to point out the same in the course of trial and dismissed I.A.No.376 of 2011 which is under challenge. Learned counsel has asserted the objection preferred by petitioner in the trial court and contended that in the nature of the suit, issue regarding title is also involved and unless that is settled it may go to the disadvantage of petitioner. Learned counsel has taken me through the evidence of witnesses examined before learned Munsiff. 3. Learned Munsiff observed that so far as identification of the property is concerned, there appeared to be no serious dispute and that on the east and north of the suit property, is the road and cannal. Those are the boundaries seen at the spot. Total extent of property as per measurement is only 58½ cents (as against 79 cents claimed by petitioner/plaintiff in old survey No.231/3C). Learned Munsiff also pointed out from the report and plan and the evidence that resurvey number of old survey 231/3C is 187/2 in which respondent is found to have property towards south of the suit property. Learned Munsiff observed that going by Ext.B1, copy of the basic tax register, property in O.P(C).No.2173 of 2011 -: 3 :- resurvey number 187/2 is in the ownership of the respondent. Reference is also made to the report of the Advocate Commissioner that survey stones were found on the eastern boundary. It is in these circumstances that learned Munsiff refused to remit the report. It is seen from the order under challenge that learned Munsiff has observed that since the suit is one for injunction and there is no question of deciding title, emphasis need not be given to the issue regarding title and possession alone is under consideration. Further, it is observed that if at all there is any material defect in measurement of the properties, it is open to the petitioner to point out the same in the course of trial. 4. I am not inclined to think that the said observation is made without any effect or consequence. If issue regarding title become relevant for consideration and if petitioner could point out any material irregularity in the measurement, it is open to the learned Munsiff to look into that as observed in the impugned order. In that situation it is not necessary for me to interfere with the order under challenge. With the above observation, this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-