IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 OP(C).NO. 1104 OF 2010(O) -------------------------------------- OS.275/2010 OF MUNSIFF COURT, VAIKOM PETITIONERS: ---------------------- 1. C.P.KURIAN, AGED 66 YEARS, S/O.PATHROSE, CHEMPAKAPARAMBIL HOUSE, MEVELLOOR P.O., VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 2. SAJI KURIAN, AGED 33 YEARS, S/O.C.P.KURIAN, CHEMPAKAPARAMBIL HOUSE, MEVELLOOR P.O., VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 3. MARIYAMMA, AGED 60 YEARS, W/O.C.P.KURIAN, CHEMPAKAPARAMBIL HOUSE, MEVELLOOR P.O., VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 4. C.P.THOMAS, AGED 62 YEARS, S/O.PATHROSE, CHEMPAKAPARAMBIL HOUSE, MEVELLOOR P.O., VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.ALIAS M.CHERIAN RESPONDENT(S): ------------------------- JOSE, AGED 55 YEARS, S/O.JOSEPH, KAVANAYIL HOUSE, SANTHIPURAM KARA, MARANGOLI P.O., NJIZHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN-686 612. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) 1104 of 2010 ==================================== Dated this the 13th day of December, 2010 J U D G M E N T Defendants in O.S. No.275 of 2010 of the court of learned Munsiff, Vaikom are the petitioners before me challenging Ext.P5, order on I.A. No.1671 of 2010 as per which request of petitioners to appoint a survey commission for measurement of the property was dismissed. Respondent claimed to be the owner in possession of 54 cents of land made up of 24 cents in Sy.597/7B and 30 cents in Sy.No.597/7C as per document No.1776 of 2000. It is also the case of respondent that property is bounded on four sides by specific boundaries. Respondent had an agreement with petitioner No.1 on 22.03.2006 for sale of the suit property to petitioner No.1. That agreement did not go through. Petitioner No.1 filed O.S. No.375 of 2006 against the respondent for specific performance of the agreement. But the court passed only a decree for return of advance money. Against that order, petitioner No.1 filed R.F.A. No.651 of 2010 which is pending. It is in the meantime apprehending trespass respondent filed O.S. No.275 of 2000. Petitioners filed written statement contending that respondent O.P(C) No.1104 of 2010 -: 2 :- does not have that much extent of land as stated in the document of title and that survey commission taken in O.S. No.375 of 2006 reported that respondent has only 15.17 Ares excluding the land taken for PWD road, Chira, Adjoining Canal and pathway on the west. Petitioners have also a contention that there is a pathway on the west of the suit property used by petitioner No.4 for access to his property. To prove all these things petitioners filed application for issue of a commission which was dismissed as above stated. Learned counsel for petitioners contented that the suit is listed for trial on 20.12.2010 though the suit was filed only on 01.10.2010. It is also submitted that a survey commission is essential since attempt of respondent is to create evidence in support of his contention in R.F.A. No.651 of 2010. 2. Learned Munsiff observed that petitioner No.1 cannot deny title and possession of respondent in the suit property in the light of the agreement for sale. If petitioners wanted to know the exact extent of the property available with the respondent to be proved in the present suit and if it is relevant for decision it is open to them to get certified copy of the plan which they rely on in O.S. No.375 of 2006 and prove the same by examining the Surveyor who is stated to have prepared it. Since survey was O.P(C) No.1104 of 2010 -: 3 :- conducted and evidence of that could be adduced in the present suit, if it is necessary, I do not find it necessary to appoint a survey commission in the present case. 3. It is requested that since the suit is listed for trial petitioners may be given opportunity to produce appropriate evidence regarding extent of the property in the ownership and possession of the respondent. I make it clear that if otherwise it is relevant it will be open to the petitioners to produce the certified copy of plan in O.S. No.375 of 2006 and examine the Surveyor who is stated to have prepared it. Counsel for petitioners submits that petitioners have to apply for copy of the plan either in the court below or if records are sent to the High Court, in this Court and it will take some time. Learned Munsiff shall take into consideration that aspect also. If any request for time is made by petitioners learned Munsiff shall, having regard to the contentions raised by parties pass appropriate orders on that request. Original Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv