IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 WP(C).No. 31099 of 2008(B) ----------------------------------- OS.44/2007 of SUB COURT,THODUPUZHA .................... PETITIONER : ---------------- THOMAS, S/O.MATHAI, NATTUNILATHU HOUSE, ARAKULAM.P.O, ARAKULAM VILLAGE. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENTS : -------------------- 1. JAISON, S/O.THOMAS, MULLAPPILLIL HOUSE, KARIMKUNNAM.P.O, KARIMKUNNAM VILLAGE, KOTTAYAM DISTRICT. 2. THE SUB REGISTRAR, SUB REGISTRY OFFICE, THODUPUZHA. BY PUBLIC PROSECUTOR SMT.R.BINDHU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ W.P(c) No. 31099 of 2008 ------------------------------ Dated this the 22nd day of October, 2008 JUDGMENT Heard. 2. First respondent through his sister filed O.S. No.44 of 2007 in the Sub Court, Thodupuzha for specific performance of an agreement for sale of the schedule property and in the alternative for return of the advance sale consideration. In the plaint, it is stated that since the plaintiff is abroad, his sister is filing the suit on behalf of the plaintiff. She was telephonically instructed to file the suit and the letter of authority was to be sent through E mail. Petitioner/first defendant filed written statement denying various allegations in the plaint. As per Exhibit P6 order, which is under challenge in this proceedings learned Sub Judge appointed an Advocate Commissioner to verify the extent of purambokku land allegedly included in the schedule property. Petitioner/first defendant contents that no purambokku is involved and that averments in the plaint did not satisfy the definition of purambokku as given in Section 4 of the Kerala Land Conservancy Act. Petitioner therefore seeks to quash Exhibit P6 order. 3. Though petitioner has raised other contentions also in this proceedings, only contention urged before me is regarding the correctness of Exhibit P6. W.P(c) No. 31099 /2008 2 4. First respondent/plaintiff has alleged in the plaint that what was agreed to be sold to him is the property belonging to the petitioner/first defendant (as per his title deed) and 'virivu' excluding the road portion and that it was further agreed that before execution of sale deed the property will be surveyed. The first respondent/defendant learned that what is involved is not virivu but along the western side of the property it is a rocky area which is understood to be purambokku land. It is further alleged that the petitioner/first defendant included that purambokku land also as part of the schedule property agreeing to sell the same to the first respondent/plaintiff. Obviously, it is in the light of that averment in the plaint that he applied for the appointment of Commission and the learned Sub Judge allowed that application as per Exhibit P6 order. Question whether there is purambokku or not included in the schedule property agreed to be sold is a matter to be decided in the suit. I do not find anything illegal or irregular in Exhibit P6, order requiring interference in exercise of the power under Article 227 of the Constitution. Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE scm