IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 19945 of 2009(O) ---------------------------------------- OS.440/2008 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): ----------------------- K.K.SURESH,AGED 35 YEARS, S/O.KRISHNAN KUTTY,MUNDUMPURATHU @ KONNACKAL HOUSE NORTH MARADY KARA,MARADY VILLAGE. BY ADV. MR.PAUL K.VARGHESE RESPONDENT(S): ------------------------- 1. M.G.RADHAKRISHNAN,AGED 62 YEARS, S/O.GOPALAN KARTHA,LAKSHMI SREE @ MUKALATHU @ VALANIKKATTU HOUSE, K.T.JACOB NAGAR ROAD,NORTH MARADY KARA, MARADY VILLAGE. 2. SUSHEELA,AGED 54 YEARS, S/O.M.G.RADHAKRISHNAN,LAKSHMI SREE @ MUKALATHU @ VALANIKKATTU HOUSE, K.T.JACOB NAGAR ROAD,NORTH MARADY KARA, MARADY VILLAGE. R1 & R2 BY ADVS.MR.BABY THOMAS, MR.GIGIMON ISSAC, MR.A.K.JAYAPRAKASH, SMT.PRAVIDA GOPALAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.19945/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 440/08 BEFORE MUNSIFF COURT, MUVATTUPUZHA DTD. 20.9.08. P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER AND OTHER DEFENDANTS IN OS. NO.440/08 BEFORE THE MUNSIFF COURT, MUVATTUPUZHA DTD. 24.10.08. P3:_ COPY OF THE IA NO.1378/09 IN OS. 440/08 FILED BEFORE MUNSIFF COURT, MUVATTUPUZHA DTD. 27.5.09. P4:- COPY OF THE COUNTER AFFIDAVIT IN IA. 1378/09 IN OS. 440/08 DTD. 3.6.09. P5:- COPY OF THE ORDER IN IA. 1378/09 IN OS. 440/08 DTD. 4.6.09. TRUE COPY P.S. TO JUDGE tss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.19945 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 19th August, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records leading to Exhibit P5 order and set aside the same and allow IA No.1378/2009 in O.S.No.440/2008 of the Munsiff Court, Muvattupuzha. 2. To issue such other writ, order or direction as may be necessary in the facts and circumstances of the case. 2. Petitioner is the first defendant in O.S.No.440 of 2008 on the file of the Munsiff Court, Muvattupuzha. Suit is for perpetual prohibitory injunction, and the respondents are the plaintiffs. The defendants after filing the written statement, moved an application for appointment of a commission to substantiate their contention that the plaintiffs had surrendered portions of their properties for widening pathway. Plaintiffs filed objections to that application. The learned Munsiff, after hearing both sides, dismissed that application vide P5 order. Propriety and correctness of P5 order is challenged in the Writ Petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned Munsiff has W.P.C.No.19945/09 - 2 - dismissed the commission application of the defendants holding that the title of the property is not an issue in the case and that previously a Commissioner had inspected the property and filed a report. In the nature of the disputes arising for adjudication, according to the learned Munsiff, measuring of the property is not necessary. The reasoning expressed by the learned Munsiff is assailed by the learned counsel for the petitioner contending that to substantiate the case canvassed by the defendants in their written statement that the plaintiffs are not having exclusive possession over the plaint property in respect of which the decree of injunction is sought for, the appointment of a Commissioner as requested for is essential. On the other hand, learned counsel for the respondents/plaintiffs submitted that already there is a report and plan and that would suffice in fixing the identification of the plaint property. In a suit for injunction, the burden is squarely on the plaintiff to prove the identity of the property. More so, when a challenge is raised by the defendants canvassing a case that the plaintiff has no exclusive possession over the property. The reasons stated by the learned Munsiff for disallowing the application in P5 order are not correct. However, as the plaintiff is satisfied with the report and plan already filed and take the risk thereof in sustaining the suit claim, and no burden cast W.P.C.No.19945/09 - 3 - upon the defendants the identity of the suit property, I find no interference with P5 order is called for. The Writ Petition is closed. srd S.S. SATHEESACHANDRAN, JUDGE