IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).NO. 10701 OF 2010(O) ----------------------------------------- AGAINST THE ORDER IN IA 2068/09 IN OS.588/2007 OF ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONER(S): ---------------------- GEORGE A.J., S/O.JACOB, AGED 63, ADIMURI HOUSE, ODAMPILLY LANE, THOPPUMPADY, KOCHI-5. BY ADV. SRI.S.SHYAM SRI.G.SUBRAMANIAN RESPONDENT(S): ---------------------- 1. AJEESH KUREETHARA, SARASWATHI VILAS, ERAMALLOOR MURI, EZHUPUNNA VILLAGE. 2. PRASANNAKUMARI OF -DO-, -DO-. ADV. SRI.ROY CHACKO FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 30.11.2005 IN O.S. NO.797 OF 2003 OF THE MUNSIFF'S COURT, CHERTHALA. EXHIBT P2 TRUE COPY OF THE PLAINT IN O.S. NO.588 OF 2007. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED IN EXT.P2 CASE. EXHIBIT P4 TRUE COPY OF THE COMMISSION APPLICATION FILED IN O.S. NO.588 OF 2007. EXHIBIT P5 TRUE COPY OF THE COUNTER FILED TO EXT.P4 APPLICATION. EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A. NO.4775 OF 2009 IN O.S. NO.588 OF 2007. EXHIBIT P7 TRUE COPY OF THE ORDER IN I.A. NO.2068 OF 2009 IN O.S. NO.588 OF 2007. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.10701 of 2010 ==================================== Dated this the 07th day of July, 2010 J U D G M E N T Challenge in this Writ Petition is to Ext.P7, order dated 11.03.2010 on I.A. No.2068 of 2009 in O.S. No.588 of 2007 of the court of learned Additional Munsiff, Cherthala. Petitioner-plaintiff sued respondents for recovery of possession of suit property on the strength of an assignment deed. Respondents while claiming that they continued to be in possession of the suit property as before pleaded that sale deed referred to and relied on by the petitioner was executed merely as a security for a loan transaction, that property was not intended to sold and that the document has not taken effect. They did not dispute identity of the suit property. While so petitioner filed I.A. No.2068 of 2009 to depute an Advocate Commissioner to inspect the suit property and prepare a plan with reference to the documents of title relied on by petitioner. There was a also a request to fix boundary in the said application. That application was initially allowed by the learned Munsiff vide order dated 26.11.2009. Respondents filed I.A. No.4775 of 2009 to review the said order stating that there is no W.P(C) No.10701 of 2010 -: 2 :- necessity to have the suit property measured and identified in so far as they have not disputed identity of the property. Learned Munsiff was impressed by that contention and vide order dated 11.03.2010 on I.A. No.4775 of 2009, order dated 26.11.2009 was reviewed. Thereafter learned Munsiff heard parties again on I.A. No.2068 of 2009 and vide order dated 11.03.2010 dismissed that application accepting contention raised by respondents. That order (Ext.P7) is under challenge in this Writ Petition. Learned counsel for petitioner contends that though not in this case, in O.S.No.797 of 2003 filed by petitioner for a decree for prohibitory injunction respondents while claiming that they are in possession of the suit property contended that it is lying contiguous with the rest of the properties belonging to them and that suit was dismissed for lack of identity of the suit property. According to the learned counsel though it is within the power of the executing court to identify the suit property, proper course is to identify the suit property on the trial side itself so that trial court could grant appropriate relief as prayed for in the plaint. Learned counsel for respondents contends that in the nature of contentions raised by respondents identification of suit property is not warranted since respondents have not disputed identity and W.P(C) No.10701 of 2010 -: 3 :- instead only contended that assignment deed executed in favour of petitioner is only a security for the loan transaction and not intended to confer title. Respondents continued to be in possession of the property as before. It is pointed out that in A.S.No.15 of 2006 arising from Ext.P1, judgment petitioner has already filed application for the issue of a commission to identify the property. It is further pointed out that respondents have filed O.S. No.492 of 2007 for a declaration that assignment in favour of petitioner is a sham document. 2. One preliminary objection that learned counsel for respondents raised is that this Writ Petition so far as it is in challenge of Ext.P7, order is not maintainable since petitioner has not challenged Ext.P6, order dated 11.03.2010 on I.A. No.4775 of 2009 whereby order dated 26.11.2009 on I.A. No.2068 of 2009 was reviewed. That objection has no legs to stand since petitioner is aggrieved not by the order dated 11.03.2010 on I.A. No.4775 of 2010 reviewing the earlier order appointing Advocate Commissioner but by the revised order dismissing I.A. No.2068 of 2009. Even though order dated 26.11.2009 was reviewed by the learned Munsiff it did not stand in the way of learned Munsiff W.P(C) No.10701 of 2010 -: 4 :- allowing I.A. No.2068 of 2009 and appointing an Advocate Commissioner to identify the property. The preliminary objection is overruled. 3. Then the question is whether on the facts and circumstances it is necessary to identify the suit property with reference to the documents relied on by petitioner. I must bear in mind that in O.S. No.797 of 2003 between the very same parties and concerning the same property respondents had successfully raised a contention that suit property has not been identified in that the suit property is lying contiguous with the rest of the property belonging to and in the possession of respondents. In the written statement filed by the respondents there is no contention that suit property is lying within demarcated boundaries from the rest of the property belonging to the respondents. In such a situation possibility of dispute regarding identity of property even after a decree (in case it is so passed) cannot be ruled out. That executing court also has power to identify the property does not mean that in every case issue regarding identity of the property has to be settled in execution. That is not the procedure to be followed. Executing W.P(C) No.10701 of 2010 -: 5 :- court identifying the property with the assistance of Advocate Commissioner should be taken as an exception and not the general rule. This is a suit on title. Burden is squarely on petitioner. Failure on the part of petitioner to measure the property with reference to his title deed can become fatal (See K.B. Ambujakshy Amma v. Gopi – 1989 [2] KLJ 705). In the said circumstance and to avoid controversy in execution proceeding in case a decree is passed in favour of petitioner and having regard to the nature of the contentions taken by the respondents I am persuaded to think that proper course is to appoint an Advocate Commissioner to identify the suit property with reference to the documents of title relied on by the petitioner. In that view court below was not correct in dismissing I.A. No.2068 of 2009. But since suit is not one for fixation of boundary it is not necessary that the Advocate Commissioner should be asked to fix boundary of the suit property. What is required is identification of the suit property with reference to the documents of title relied on by petitioner and other documents which are required and relevant for the purpose. Hence order dated 11.03.2010 on I.A. No.2068 of 2009 in O.S. No.588 of 2007 is set aside and that application will stand allowed except to the W.P(C) No.10701 of 2010 -: 6 :- extent it concerned petitioner's request to fix boundary of the suit property. Writ Petition is allowed as above. THOMAS P. JOSEPH, JUDGE. vsv