IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 1655 of 2009(V) AS.107/1994 OF SUB COURT, CHERTHALA O.S.NO.76/1985 OF THE MUNSIFF'S COURT, CHERTHALA PETITIONER : PRASANNAN, AGED 62, S/O.LATE PRABHAKRAN KOTTARATHIL, PATTANAKKADU MURIYIL, PATTANAKKADU VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENTS: 1. PANKAJAKSHY, W/O. PADMANABHAN PADINJARE CHOOPRATH, PATTANAKKADU, PATTANAKKADU VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT. 2. PANKAJAKSHY LALITHA,D/O.PADMANABHAN PADINJARE CHOOPRATH, PATTANAKKADU, PATTANAKKADU VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT. 3. BHAVANI, W/O.LATE PRABHAKARAN KOTTARATHIL, PATTANAKKADU MURIYIL, PATTANAKKADU VILLAGE, CHERTHALA . 4. PRABHAKUMARI, D/O.PRABHAKARAN, ONAM VELIL, KUTHIYATHODU PO, CHERTHALA. 5. PRASANNA, D/O.PRABHAKARAN GHAMBARATTU VEETTIL, PERUMBALAM. R1 & R2 BY ADV. SRI.J.OM PRAKASH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOSTAT COPY OF THE JUDGMENT IN A.S.NO.107/1994 BEFORE SUB COURT, CHERTHALA. EXT.P2 PHOTOSTAT COPY OF THE JUDGMENT DATED 30.3.2006 IN CMA.NO.268/1999 OF THIS COURT. EXT.P3 PHOTOSTAT COPY OF THE INTERLOCUTORY APPLICATION NO.3772/2008 PREFERRED BY THE PETITIONER. EXT.P4 PHOTOSTAT COPY OF THE STATEMENT OF OBJECTION PREFERRED TO I.A.NO.3772/2008. EXT.P5 PHOTOSTAT COPY OF THE ORDER GRANTING POLICE ASSISTANCE TO THE COMMISSIONER DATED 16.10.2008. EXT.P6 PHOTOSTAT COPY OF I.A.NO.3776/2008 SEEKING A DIRECTION TO MEASURE OUT THE PROPERTY OF THE PLAINTIFF. EXT.P7 PHOTOSTAT COPY OF THE STATEMENT OF OBJECTION PREFERRED BY THE PLAINTIFFS TO I.A.NO.3776/2008. EXT.P8 PHOTOSTAT COPY OF THE ORDER DATED 7.11.2007. EXT.P9 PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE ADVOCATE COMMISSIONER. EXT.P10 PHOTOSTAT COPY OF THE REPLY DATED 20.12.2008 GIVEN BY THE ADVOCATE COMMISSIONER. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 1655 OF 2009 V ------------------------------------------------------ Dated this the 24th March, 2009 JUDGMENT The suit filed by the predecessor-in-interest of respondents 1 and 2 as O.S.No.76 of 1985, on the file of the Court of the Additional Munsiff of Cherthala, was dismissed by the trial court. On appeal as A.S.No.107 of 1994, Sub Court, Cherthala, the Appellate Court set aside the judgment of the trial court and remanded the case for fresh disposal. Directions (A) to (G) were also given by the Appellate Court as to the identification of the property in dispute. The directions include certain directions to the Commissioner as well. Though defendants 2 and 3 filed C.M.A.No.268 of 1999 challenging the order of remand, the C.M.Appeal was dismissed. 2. When the Commissioner was executing the work, it would appear that he was obstructed by the defendants. As per the order dated 16.10.2008, the trial court afforded adequate police aid to the Commissioner. 3. Thereafter, the defendants filed I.A.No.3776 of 2008 for issuing directions to the Commissioner to measure the property of the plaintiffs first and thereafter, to locate the property in accordance with the directions W.P.(C) NO.1655 OF 2009 :: 2 :: contained in the remand order. The application was opposed by the plaintiffs. The court below dismissed the application holding that which property is to be measured first is to be decided by the Commissioner. 4. Sri.Om Prakash, learned counsel appearing for the respondents in the Writ Petition, submitted that the respondents/plaintiffs are not very much concerned as to which property is to be measured first. They have no objection in measuring their property first by the Commissioner. Their only anxiety is that the Commissioner should be able to execute the work as directed in the earlier order with the full co-operation and assistance of the defendants. Counsel also submits that all through out the defendants were not co-operating with the Commissioner. 5. After having heard the learned counsel for the parties, I am of the view that the Commissioner can be directed to inspect and measure the plaint schedule property first. Thereafter, the Commissioner shall measure the property in the possession of the defendants and execute the work in accordance with the directions contained in the earlier order. The order passed by the court below is set aside. The defendants shall co-operate with the Commissioner and shall not create any obstruction in carrying out the work by the Commissioner. It is assured by Sri.C.Varghese Kuriakose, learned counsel appearing for the writ W.P.(C) NO.1655 OF 2009 :: 3 :: petitioner/3rd defendant, that the defendants will co-operate with the Commissioner and assist him in locating the various properties. The necessary documents also will be produced before the Commissioner by the defendants, counsel submits. The Writ Petition is allowed with the above directions. (K.T.SANKARAN) Judge ahz/