IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 OP(C).NO. 25 OF 2010(O) ------------------------------------ OS.179/2009 OF PRL.MUNSIFF, KASARAGOD .................... PETITIONER: -------------------- 1. AHAMMED KUNHI, S/O.MAMMALI, EROONJI HOUSE, ADOOR VILLAGE, URDOOR.P.O., KASARGODE. 2. SHAMEEM AHAMMED, S/O.AHAMMED KUNHI, EROONJI HOUSE, ADOOR VILLAGE, URDOOR.P.O., KASARGODE. 3. SAFIYA MANSOOR, D/O.AHAMMED KUNHI, EROONJI HOUSE, ADOOR VILLAGE, URDOOR.P.O., KASARGODE. BY ADV. SRI.V.V.ASOKAN SRI.R.JAIKRISHNA RESPONDENT(S): ------------------------- A.B.IBRAHIM, S/O.LATE BEERA MOIDEEN, PALLATHADKA, AJJAVAR VILLAGE, SULLIA TALUK, DAKSHINA KANNADA DISTRICT, KARNATAKA STATE. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.25 of 2010 ==================================== Dated this the 23rd day of September, 2010 J U D G M E N T Defendants in O.S. No.179 of 2009 of the court of learned Principal Munsiff, Kasargod are the petitioners before me challenging Ext.P7, order on I.A. No.1385 of 2010 refusing to send the documents of title relied on by the parties to the Expert for opinion. It is not disputed that an extent of 2.59 acres in R.S.No.96/8 belonged to one Mohammed. Petitioners claimed that petitioner No.3 got assignment of 1.29 acres out 2.59 as per assignment deed No.2463 of 1984 and thereafter there was an exchange between petitioner No.3 and one Mariyam as per Exchange deed No.2818 of 1993 as per which 19 cents out of 1.29 acres was given to the said Mariyam and rest of the property, 1.11 acres belonged to and is in the possession of petitioner No.3. According to the respondent he got 1.29 acres in R.S. No.96/8 as per document No.983 of 1988 and is in possession thereof. Petitioners, in the written statement contended that petitioner No.3 is in possession of 1.29 acres as per assignment deed No.2463 of 1984 and that since the common assignor had 2.59 O.P(C) No.25 of 2010 -: 2 :- acres and since 1.29 acres was assigned as per the said document what remained is only 1.30 acres and he could not have assigned anything more than that. It was also contended that assignment deed No.983 of 1988 is not genuine. But there was no serious contention raised by petitioners that the said document is fraudulently created. Learned Munsiff refused to send the document to the Expert observing that there was no relief claimed with respect to document of title and what is relevant for consideration is only possession claimed by respondent as on the date of suit and hence it is unnecessary to send the document to the Expert. Learned counsel for petitioners contended that one of the methods of proving that respondent has no possession over the property is by showing that document No.983 of 1988 is fraudulently created. 2. I am unable to agree. This being a suit for injunction what is required to be decided is only whether respondent was in possession of the property as on the date of suit. Even as per the version of petitioners, petitioner No.3 claims to be in possession and ownership of the same property as per document No.2463 of 1984 while according to respondent he got possession of the property only as per document No.983 of 1988, O.P(C) No.25 of 2010 -: 3 :- admittedly subsequent to the assignment in favour of petitioner No.3. In these circumstances I am not persuaded to think that examination of the document by the Expert is necessary to decide the controversy involved in the case. As such learned Sub Judge was right in refusing to send the document to the expert. There is no reason to interfere with Ext.P7, order. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv