IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 OP(C).No. 3207 of 2011(O) ------------------------- OS.198/2004 of MUNSIFF MAGISTRATE, SULTHAN BATHERI .................... PETITIONER --------------- MANAGER,MAR BASELIOUS UP SCHOOL, KOLIYADI,NENMANI AMSOM,REP.BY FR.TONY KOZHIMANNIL, CORPORATE MANAGER, CATHOLIC BISHOP HOUSE,DIOCESE OF BATHERY,SULTHAN BATHERY,WAYANAD DISTRICT. BY ADV. SRI.B.S.SURESH (CHIRAKKARA) RESPONDENTS: ------------------ 1. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. N.K.GANGADHARAN NAMBIAR,ANIL NIVAS, KOLIYADI,NENMANI AMSOM,SULTHAN BATHERY TALUK, WAYANAD DISTRICT. R2 BY ADVS. SRI.C.C.ABRAHAM SRI.V.J.JAMES THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2011, HE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 3207 of 2011(O) ---------------------------------- APPENDIX ----------- PETITIONER(S) EXHIBITS -------------------------------- EXHIBIT P1 THE COPY OF THE OS NO.198/2004 EXHIBIT P2 THE COPY OF THE IA 242/2011 DATED 28.2.11 FILED BY THE PETITIONER FOR APPOINTING A FRESH COMMISSION FOR MEASURING THE PROPERTY ON THE BASIS OF RELEVANT RECORDS. EXHIBIT P3 COPY OF THE ORDER DATED 11//4/2011 IN IA NO.242/2011 IN OS NO.198/2004 BEFORE THE MUNSIFF-MAGISTRATE COURT,SULTAN BATHERI. RESPONDENTS' EXHIBITS : NIL ------------------------------ / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3207 of 2011 -------------------------------------- Dated this the 6th day of December, 2011. JUDGMENT The defendant in O.S.No.198 of 2004 of the court of learned Munsiff- Magistrate, Sulthan Bathery is aggrieved by Ext.P3, order dismissing I.A.No.242 of 2011. 2. The suit filed by the 2nd respondent after amendment is one for recovery of possession of plaint B schedule based on title. The 2nd respondent claimed title to the property as per a sale deed and patta dated 27.06.1984 issued by the Land Tribunal. Advocate Commissioner measured the property, according to the petitioner, without any reference to the patta file or sketch accompanying it. Petitioner filed application to summon the patta file and sketch for measurement and another application for measurement of the property with reference to those documents. It is submitted that the court below directed the Tahsildar to produce the relevant records but the application for measurement of property was dismissed for the reason that petitioner did not produce the relevant documents. Later the Tahsildar is said to have produced the patta file along with the sketch. Thereon, petitioner filed I.A.No.242 of 2011 for measurement of property as per patta file and sketch. That application was dismissed by Ext.P3, order for the reasons that it is not clear what is the objection petitioner has, to the existing report and plan, that the earlier OP(C)No.3207/2011 2 application for measurement has been dismissed and that the Advocate Commissioner was not examined to show that the work done by him was not proper. 3. It is submitted by the learned counsel that measurement of property is required to ascertain whether there is any trespass as pleaded by the 2nd respondent. Learned counsel for 2nd respondent contended that it is not clear what is the objection petitioner has to the existing plan and report. 4. True that an earlier application was dismissed but that was because petitioner did not produce the relevant documents. Now the documents are produced by the Tahsildar. So far as the nature of objection petitioner has raised is concerned, learned counsel has invited my attention to Ext.P2. It is contended that a measurement of property with reference to the patta file and sketch is required. 5. Having gone through the order under challenge and heard learned counsel on both sides and also considering the fact that the patta file and sketch are produced by the Tahsildar later, I am inclined to think that dismissal of a former application for measurement of the property as documents are not produced need not prevent learned Munsiff-Magistrate considering I.A.No.242 of 2011 and deciding whether measurement of the property is required with reference to the patta file and sketch produced by the Tahsildar. OP(C)No.3207/2011 3 6. Learned counsel for the 2nd respondent submits that 2nd respondent is aged 76 years and there may be a direction for early disposal of the proceedings. Certainly learned Munsiff shall consider that and in case decides to remit the report and plan or call for further details through the Advocate Commissioner and Surveyor, give necessary instruction to them expedite their proceedings. Resultantly this Original Petition is allowed. Ext.P3, order is set aside and I.A.No.242 of 2011 in O.S.No.198 of 2004 is remitted to the learned Munsiff- Magistrate, Sulthan Bathery for fresh decision in the light of the observations made above. THOMAS P.JOSEPH, Judge. cks