IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 24719 of 2010(O) -------------------------- I.A.2271/2009 IN OS.436/2008 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER(S)/PETITIONER/1ST DEFENDANT: ----------------------------- K.C.VARKEY, S/O.CHACKO VARKEY, AGED 79 YEARS, THOPPIL VALIYAKAROTTU HOUSE, PANAYAMPALA, KARUKACHAL P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER SMT.INDU SUSAN JACOB SRI.ENOCH DAVID SIMON JOEL RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------- SARAMMA GEORGE, W/O.JOHN K.GEORGE, GEMS KANDATHIL, SOUTH FORT (KOTTACKAKAM) KOTTARAKAVU MURI, MAVELIKKARA VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. FROM VAZHUVELIPLACKAL HOUSE, PANAYAMPALA, KARUKACHAL PO 686540 NEDUMKUNNAM VILLAGE, CHANGANACHERRY TALUK. ADV. SRI.K.V.SOHAN FOR R1 SMT.SREEJA SOHAN.K. FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).24719/10 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.436/2008 ON THE FILES OF ADDITIONAL SUB COURT, KOTTAYAM. EXT.P1(A): COPY OF THE ROUGH SKETCH PREPARED BY THE ADVOCATE COMMISSIONER. EXT.P2: COPY OF THE JUDGMENT DATED 19.11.2008 IN W.P.(C).25100/2008. EXT.P3: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER HEREIN IN O.S.NO.436/2008. EXT.P4: COPY OF COMMISSION APPLICATION NUMBERED AS I.A.NO.2271/2009. EXT.P5: COPY OF ORDER DATED 25.8.2009 IN I.A.NO.2271/2009 IN O.S.NO.436/2008. EXT.P6: COPY OF OBJECTION DATED 09.09.2009 ALONG WITH THE PETITION FILED BY THE RESPONDENT. EXT.P7: COPY OF THE OBJECTION FILED BY THE PETITIONER. EXT.P8: COPY OF THE ORDER DATED 22.06.2010 IN I.A.NO.2271/2009 IN O.S.NO.436/2008. EXT.P9: COPY OF THE CERTIFIED COPY OF THE COPY APPLICATION AND THE ORDER DATED 08.07.2010. //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.24719 OF 2010 ----------------------------------- Dated this the 23rd day of September, 2010 J U D G M E N T Propriety and correctness of an order passed by the court below in a suit for injunction dismissing an application moved by the petitioner/defendant to have a survey commission of the properties of the respective parties, with reference to their title deeds, is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. From the submissions made by the counsel on both sides, it is seen the dispute involved in the suit relate to a pathway lying in between the properties of the plaintiff and defendant, over which rival claim is set up by the parties. Whereas the plaintiff has contended that the pathway exclusively belongs to her the case of the defendant is that a portion of his property had also been surrendered for widening the pathway. W.P.(C).NO.24719/10 2 Previously, when an application for commission to have a survey measurement of the properties was moved by the defendant, he was directed to pay the batta to the Commissioner and also surveyor, but, subsequently, under the present impugned order (Ext.P8), the court below dismissed the commission application as such, is the grievance espoused in the writ petition to contend that there is jurisdictional infirmity in the order of the trial court warranting interference by this Court. It has been brought to my notice that on the application moved by the defendant, the Survey Department has already conducted a survey measurement over the land and the plan prepared in such measurement has also been tendered before the court below. Correctness of that report, according to the counsel for the petitioner, is disputed. But, that is essentially a matter to be resolved in the trial of the suit, if need be. In the present petition, whether the petitioner/defendant could be permitted to have a survey commission in the suit filed by the plaintiff, which is purely one for an injunction simplicitor, is the question emerging for consideration. The burden to get such a decree, no doubt, squarely rests on the plaintiff, and only if she is able to W.P.(C).NO.24719/10 3 establish exclusive possession over the suit property in respect of which injunction is applied for against the defendant, that discretionary relief as covered by Section 38 of the Specific Relief Act can be granted. When that be so, whatever be the case of the defendant for having a survey commission to substantiate the defenses raised to oppose the suit claim for injunction, that too, without setting up any counter claim in such suit, and also where a survey plan prepared over the properties of the parties is already availabe on record, I find, in the nature of the suit, which is one for injunction simplicitor alone, there is no impropriety or illegality in the order of the court below declining the request of the defendant for the appointment of the survey commission. Writ petition is dismissed. S.S.SATHEESACHANDRAN JUDGE prp W.P.(C).NO.24719/10 4