IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 OP(C).No. 899 of 2011(O) ------------------------ OS.50/2007 of SUB COURT, PAYYANNUR .................... PETITIONER/DEFENDANT -------------------- GEORGE JOSEPH @ BABY, KOTTARAM, NEERACKAL, SREEKANDAPURAM AMSOM, KOTOOR DESOM, THALIPARAMBA TALUK. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA SMT.N.K.SHEEBA RESPONDENT/PLAINTIFF --------------------- ELSY JACOB, W/O.JACOB, KALPPURACKAL HOUSE, MUTTAMBALAM AMSOM, KUNHIKUZHI DESOM, KOTTAYAM 686001. BY ADV. SRI.VIVEK VARGHESE P.J. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JJJ OP(C).No. 899 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT DATED 11.4.2007 IN O.S.50/2007 ON THE FILE OF SUBORDINATE JUDGE, PAYYANNUR P2: COPY OF THE WRITTEN STATEMENT FIELD BY THE PETITIONER IN O.S.50/2007 ON THE FILE OF SUBORDINATE JUDGE, PAYYANNUR P3: COPY OF THE REPORT DATED FILED BY THE ADVOCATE COMMISSIONER DATED 13.2.2009 IN O.S. 50/2007 ON THE FILE OF SUBORDINATE JUDGE, PAYYANNUR P4: CERTIFIED COPY OF THE AFFIDAVIT WITH APPLICATION I.A.435/09 IN O.S. 50/2007 ON THE FILE OF SUBORDINATE JUDGE, PAYYANNUR P5: COPY OF THE APPLCATION TO ISSUE SUMMON TO THE ADVOCATE COMMISSIONER DATED 28.8.2009 IN O.S. 50/2007 ON THE FILE OF SUBORDINATE JUDGE, PAYYANNUR P6: TYPED ORDER DATED 9.12.2010 IN I.A.435/09 IN O.S. 50/2009 OF THE SUBORDINATE JUDGE, PAYYANNUR RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE JJJ THOMAS P.JOSEPH, J. ==================================== O.P(C) No.899 of 2011 ==================================== Dated this the 10th day of October, 2011 J U D G M E N T Petitioner is the defendant in O.S. No.50 of 2007 of the court of learned Sub Judge, Payyannur. Respondent-plaintiff wanted recovery of possession of plaint B schedule, described as a building bearing No.SP/XII/555 from petitioner on the strength of title claiming that plaint B schedule is situated in plaint A schedule having a total extent of 3.0280 hectares in R.S. No.164. The said property originally belonged to one N.J. Kora who gave it to the respondent on oral entrustment, followed by assignment of jenm right. According to the respondent, N.J. Kora orally permitted petitioner to occupy the building for a short period. Petitioner filed Ext.P2, written statement contending that schedule properties are not identifiable and that respondent has not acquired any right over plaint A schedule as per the above said document. He claimed that respondent has no right over plaint B schedule building or the 75 cents surrounding it. He claimed to be in possession of the said 75 cents from 1975 onwards, cultivating the land. Respondent or his assignor had no right over the said 75 O.P(C) No.899 of 2011 -: 2 :- cents since it is lost by adverse possession and the law of limitation. Petitioner claimed that he has acquired 75 cents on the side of the estate (forming plaint A schedule) and constructed the building referred to in the plant B schedule. 2. In view of the contentions raised by petitioner, court below appointed an Advocate Commissioner who submitted Ext.P3, report and plan (copy of the plan is not produced but learned Senior Advocate appearing for the respondent gave me a copy of the plan for perusal). Petitioner filed Ext.P4, application to set aside or remit the report and plan contending that the 75 cents over which petitioner claims title has not been identified or the entire property measured, instead, Advocate Commissioner simply copied the Field Measurement Book and produced the same in the court. It is also alleged that the road in front of plaint B schedule property is not shown by the Advocate Commissioner in the plan. Petitioner filed Ext.P5, application to appoint an Advocate Commissioner. Learned Munsiff as per Ext.P6, order directed that objection of petitioner is recorded and closed Ext.P4, application. In challenge of the said order, petitioner has filed this Original Petition. 3. Learned counsel asserted that the Advocate O.P(C) No.899 of 2011 -: 3 :- Commissioner has not measured the property and in particular, the 75 cents over which petitioner is claiming right. It is also submitted by the leaned counsel that even as per plaint B schedule, the property referred to therein is 35 cents and hence property occupied by petitioner was required to be identified and measured. 4. Learned Senior Advocate contended that whatever contentions petitioner has against Ext.P3, report and plan could be urged in the course of trial. It is also pointed out by learned Senior Advocate that petitioner has no case that plaint B schedule, be it the building where petitioner is residing or any extent of land as claimed by him is not part of plaint A schedule. It is pointed out that contention raised by petitioner is acquisition of title by adverse possession and the law of limitation against respondent and his predecessor-in-interest which follows that the property over which petitioner is claiming right formed part of plaint A schedule. 5. I have gone through Ext.P3, report and the copy of plan which learned Senior Advocate has given me for perusal. It is seen from the report that at the time the Advocate Commissioner inspected the property parties and the village O.P(C) No.899 of 2011 -: 4 :- assistant were present. Prima facie it appears to me that assistance of the village assistant was obtained for identification and measurement of the property. In paragraph 5 of Ext.P3, report the Advocate Commissioner has stated that petitioner who was present at the spot had pointed out the 75 cents and the building which according to him belong to him. In paragraph 7 it is stated that plaint A and B schedule properties were measured and identified with reference to the survey records. In paragraph 8 it is stated that the extent of plaint B schedule and A schedule are shown in the plan. In the plan, plaint A schedule is shown as 'ABCDEF' and property over which petitioner claims title by adverse possession and limitation is shown as 'X1X2X3X4X5X6'. I find that measurements are also given. As such, contention that property was not measured by the Advocate Commissioner cannot prima facie be accepted so that I should interfere with Ext.P6, order. But I make it clear that whatever observations made above is only a prima facie finding for disposal of this Original Petition and it is open to the petitioner to urge his contentions as to the acceptability of the report and plan in the course of trial. If any such contention is urged learned Munsiff shall consider the same with reference to the allegations O.P(C) No.899 of 2011 -: 5 :- made in the plaint and the claim made in the written statement and decide the issue if it is relevant for adjudication of the dispute involved. Original Petition is disposed of with the above observations. THOMAS P. JOSEPH, JUDGE. vsv