IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 OP(C).No. 66 of 2010(O) ----------------------- IA NO.7977/2010 IN OS.1016/2009 of I ADDL.SUB COURT, THRISSUR .................... PETITIONERS/DEFENDANTS,2,4,5,6, --------------------------------------------------- 1. MR.JOSE, S/O.CHAKRAMAKKIL THOMAS RESIDING NEAR KOTTAPADY, PUNNTHOOR ROAD, CHAVAKKAD VILLAGE, CHAVAKKAD TALUK 2. MOLY,W/O.JOSE, RESIDING NEAR KOTTAPADY, PUNNTHOOR ROAD, CHAVAKKAD VILLAGE, CHAVAKKAD TALUK 3. MRS.RADHA, W/O.VADAKKEPATT VARIYATH REGHUNANDANAN, THIRUVENKIDAM DESOM, CHAVAKKAD VILLAGE CHAVAKKAD TALUK 4. MRS.MINI,W/O.MOZHAYATH MANIKANDAN, KARAKAD DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK BY ADV. SRI.SREELAL N.WARRIER SRI.B.RAGHUNANDANAN RESPONDENT(S)/PLAINTIFF & DEFENDANTS 1 & 3: --------------- 1. MR.KURIAKOSE, S/O.CHAKRAMAKKIL LOAPPAN, PALUVAI DESOM CHAVAKKAD VILLAGE, CHAVAKKAD TALUK-680506. 2. MR.ANTO, S/O.CHAKRAMAKKIL THOMAS PALUVAI DESOM, CHAVAKKAD VILLAGE, CHAVAKKAD TALUK-680506. 3. SINI, W/O.ANTO RESIDING AT PALUVAI ROAD, PAVARTTY, CHAVAKKAD VILLAGE, CHAVAKKAD TALUK-680506. ADV. MANJU ANTONEY FOR R1 SRI.N.J.JOHNSON FOR R2 & R3 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.66/2010 ORDER ON IA NO.16150 OF 2010 DISMISSED 30.11.2010 Sd/-THOMAS P.JOSEPH,JUDGE APPENDIX PETITIONERS' EXHIBITS: EXT.P1 PLAINT IN OS NO.1016/2009 OF ADDL. SUB COURT, THRISSUR EXT.P2 WRITTEN STATEMENT IN OS 1016/2009 OF ADDL.SUB COURT, THRISSUR EXT.P3 IA NO.797/2010 UNDER ORDER 26 RULE 9 OF THE CPC FOR APPOINTMENT OF ADVOCATE COMMISSION FOR SY. IDENTIFICATIONOF PLAINT SCHEDULE PROPERTIES EXT.P4 OBJCTIONS IN IA NO.7977/2010 EXT.P5 ORDER DATED 15.09.2010 IN IA NO.7977/2010 UNDER ORDER 26 RULE 9 OF THE CODE OF CIVIL PROCEDURE FOR APPOINTMENT OF ADVOCATE COMMISSION RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF JUDGMENT DATED 7.4.2010 IN FAO NO.112/2010 EXT.R1(b) TRUE COPY OF THE COMMUNICATION LETTER DATED 5.8.2009 ISSUED BY THE TALUK SURVEYOR PURSUANT TO ORDER NO.B1-18449/07 OF THE RDO EXT.R1(c) TRUE COPY OF THE ORDER DATED 29.9.2009 IN SLT(C) NO.23378/2009 EXT.R1(d) TRUE COPY OF THE JUDGMENT DATED 23.6.2009 PASSED BY THIS COURT IN FAO NO.121/2009 EXT.R1(e) TRUE COPY OF THE THANDAPER REGISTER DATED 5.9.2009 OF 40 CENTS OF LAND IN SURVERY NO.157/4 OF CHAVAKKAD VILLAGE EXT.R1(f) TRUE COPY OF THE THANDAPER REGISTERE DATED NIL OF 32 CENTS OF LAND IN SURVEY NO.157/5 OF CHAVAKKAD VILLAGE EXT.R1(g) TRUE COPY OF THE COMMISSION REPORT DATED 2.6.2010 WAS FILED BY THE ADVOCATE COMMISSIONER IN IA NO.2286/2010 IN OS 1016/2009 BEFORE THE LOWER COURT //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.66 of 2010 -------------------------------------- Dated this the 30th day of November, 2010. JUDGMENT Defendant Nos.2 and 4 to 6 in O.S.No.1016 of 2009 of the court of learned Additional Sub Judge, Thrissur are the petitioners before me challenging Ext.P5, order dismissing I.A.No.7977 of 2010 for issue of a survey commission to identify the disputed properties as prayed for in that application. Respondent No.1/plaintiff sued for cancellation of two sale deeds and a rectification deed, for a declaration that the said documents do not bind him and the suit property and for consequential reliefs. Advocate Commissioner inspected the properties and submitted report and sketch. But, it is not disputed by either side that there was no survey commission taken by any of the parties. It is in the circumstance that petitioners filed I.A.No.7977 of 2010 for appointment of a survey commission to identify the properties so that, a proper adjudication of the dispute between the parties is possible. That application was dismissed by learned Sub Judge observing that there was no application filed (obviously by petitioners) to remit the report of Advocate Commissioner for noting matter now prayed for in I.A.No.7977 of 2010. But, as I stated earlier there was no survey commission earlier. Hence reason stated by learned Sub Judge for dismissing I.A.No.7977 of 2010 cannot be sustained. OP(C) No.66/2010 2 2. On the relevancy of the application made by petitioners it is necessary to refer to the facts in dispute. According to the petitioners, one Kuriakku owned 40 cents in survey No.18/5 (R.S.No.157/4) as per document No.332 of 1934. He had another 32 cents on the immediate south of the said 40 cents comprised in survey No.18/4 (R.S.No.157/5). Kuriakku assigned the said 40- cents to his son, Thomas as per document No.1315 of 1956 and the 32 cents on the immediate south of the said 40 cents was given to the possession and enjoyment of his another son, Lonappan who in turn assigned the said 32 cents to respondent No.1/plaintiff. According to the petitioner entitlement of respondent No.1/plaintiff is only for the 32 cents in survey No.18/4 (R.S.No.157/5). While so, Thomas executed Will No.1 of 1996 regarding the 40 cents(situated on the north of 32 cents referred to above) as per which 15 cents was given to petitioner No.1/defendant No.2 and 23 cents was given to defendant No.1(learned counsel says that though the extent of property was described in the document as 40 cents actual extent was only 38 cents as above stated). According to the petitioners, in Will No.1 of 1996 Thomas wrongly mentioned Subdivision Number of the 40 cents as 157/5(which concerned the 32 cents on the south, which was given to Lonappan and now which is in the possession of respondent No.1/plaintiff). It is also the case of petitioners that out of the property petitioner No.1/defendant No.2 got as per Will No.1 of 1996, he assigned a portion to his wife (defendant No.4) as per document No.2692 of 2007. Defendant No.4 in turn assigned that portion to defendant Nos.5 and 6 as per document Nos.1902 of 2008 and 1903 of 2008. In the meantime defendant No.1 is said to have assigned 17 cents out of the 23 cents to his wife, defendant No.3 as per document No.1399 of 2008. On OP(C) No.66/2010 3 learning that there was a mistake in the Subdivision Number petitioner No.1/defendant No.2 is said to have executed rectification deed No.1571 of 2008 to defendant No.4. It is these documents which respondent No.1/plaintiff assails. 3. According to the learned counsel for petitioners the whole dispute can be resolved by identifying the properties through a survey commission as in the subsequent documents there happened to be a mistake in the Subdivision Number. Learned counsel for respondent No.1/plaintiff has pointed out from Ext.R1(a) that this Court had directed disposal of the suit within six months which expired on 16.11.2010 and that no attempt was made by petitioners to file application for appointment of a survey commission. It is contended that now the attempt of petitioners is to protract the proceedings. 4. Though prayer in the suit is for cancellation of documents, there is also a declaration prayed for that the impugned documents do not bind respondent No.1/plaintiff or the suit property. In short a declaration of right of respondent No.1/plaintiff over the suit property is prayed for. It has been held (see K.B.Ambujakshy Amma and another v. Gopi and another -1989 (2) KLJ 705 at page 706) that in a suit on title, failure to measure the property with reference to title deed is fatal and that title cannot be decided by surmises and conjunctures. Having heard counsel on both sides and considering the dispute involved I am persuaded to think that a survey commission is necessary to decide the dispute between parties once and for OP(C) No.66/2010 4 ever. In that view of matter learned Sub Judge was not correct in dismissing I.A.No.7977 of 2010. Hence I am inclined to allow the petition. But, what all matters are required to be identified is a matter which the learned Sub Judge has to decide having regard to the relevancy of facts required to be ascertained through the Advocate Commissioner and Surveyor. Resultantly this petition is allowed. Ext.P5, order dismissing I.A.No.7977 of 2010 is set aside and that application is allowed. Learned Sub Judge shall decide having regard to the facts and circumstances and the dispute involved what all matters Advocate Commissioner and Surveyor are to ascertain and report. The batta payable for Commissioner and Surveyor shall be met by petitioners. Learned Sub Judge may also give necessary directions to the Advocate Commissioner and Surveyor to expedite their proceedings so that the suit can be disposed of as early as possible without further delay. THOMAS P.JOSEPH, Judge. cks