IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 OP(C).No. 3695 of 2011(O) ------------------------- OS.13/2007 of MUNSIFF COURT, ALATHUR .................... PETITIONER -------------------- RAMACHANDRAN, AGED 76 YEARS, S/O.PACHAN, RESIDING AT CHATHRATH VEETTIL, KULAVANMUKU, KUZHALMANNOM AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ------------------- 1. VENUGOPALAN, S/O.GOPALAKRISHNAN, RESIDING AT ERUMAKODE VEETIL, CHITHALI, KUZHALMANNOM AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT, PIN-678 702. 2. KADHERKUTTY, S/O.KUNJUVAVA RAWTHER, RESIDING AT CHARAPARAMBIL, CHITHALI, KUZHALMANNOM AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT, PIN-678 702. 3. PEETHAMBARAN, S/O. LATGE GOPALAKRISHNAN, RESIDING AT CHATRATH VEETTIL, PONNAMPILAKAL, PULPOORAMANNAM, KUZHALMANNOM AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT, PIN-678 702. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 3695 of 2011(O) ------------------------------- APPENDIX ----------- PETITIONER(S) EXHIBITS ------------------------------ EXT.P1 TRUE COPY OF THE REPORT DATED 25.01.2007 OF THE ADVOCATE COMMISSIONER. EXT.P2 TRUE COPY OF THE REPORT DATED 27.06.2011 OF THE ADVOCATE COMMISSIONER. EXT.P3 TRUE COPY OF THE ORDER DATED 23.09.2011 IN I.A.NO.779/2011 IN O.S.NO.13/2007 OF THE MUNSIFF COURT, ALATHUR. RESPONDENTS' EXHIBITS : NIL ------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3695 of 2011 -------------------------------------- Dated this the 16th day of November, 2011. JUDGMENT 2nd defendant in O.S.No.13 of 2007 of the court of learned Munsiff, Alathur is the petitioner, challenging Ext.P3, order refusing to remit Ext.P2, report and plan at the instance of petitioner, a second time. 1st respondent filed the suit against petitioner and respondents 2 and 3 for prohibitory injunction against trespass. Petitioner disputed identity of the suit property. A Survey commission appointed by the learned Munsiff submitted Ext.P1, report and plan. That was not acceptable to the petitioner and on his request, that report and plan were remitted. The Advocate Commissioner and Surveyor after further inspection submitted Ext.P2, report and plan. Contending that property is not identified petitioner again sought for remission of Ext.P2, report and plan with a request to measure the properties with reference to the his title deeds which contained details of the old survey. Petitioner contended that the re-survey has not become final. That application was objected by the 1st respondent. Learned Munsiff by Ext.P3, order rejected the request. That order is under challenge. 2. Learned counsel contends that boundaries of property said to be that of the 1st respondent in Exts.P1 and P2 differ among themselves and with the description in the plaint schedule. According to the learned counsel, property has not been properly identified. 3. I must bear in mind that petitioner is resisting the suit and is not seeking any relief from the court. Petitioner has not made any counter claim. OP(C)No.3695/2011 2 If boundaries stated by the Advocate Commissioner in the reports among themselves differed or, with the descriptions in the plaint schedule it is open to the petitioner to point out that before the learned Munsiff at the time of trial. 4. Now the question is whether a fresh measurement of the property based on old survey is required? In the application for remission (of Ext.P1, report and plan) request made by petitioner was to identify the property as per re-survey measurement. Petitioner had no objection to the re-survey measurement then. On the other hand, petitioner asserted correctness of the re- survey measurements in the said application and in his written statement. Learned Munsiff has quoted the relevant portions from the written statement of petitioner in Ext.P3, order where petitioner has sworn by the re-survey measurements. It is in the light of the request made by petitioner in the application for remission of Ext.P1, report and plan that the same were remitted and measurements were made as per the re-survey. Now petitioner finds fault with the re-survey measurements as it has not become final. In the circumstances, I am inclined to think that a further remission is not required. As aforesaid, it is open to the petitioner to raise all contentions regarding difference in the measurement, boundaries, etc. in the report and plan before the learned Munsiff at the time of trial. Original Petition is closed with the above observation. THOMAS P.JOSEPH, Judge. cks