IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 OP(C).No. 1803 of 2011(O) -------------------------------- [I.A.691/2011 IN OS.1041/2008 DATED 16/03/2011 OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA] .................... PETITIONER: ------------------- CHATHU, S/O.MAROTTIKUNNATHU VEETTIL KUTTAN, THAZHEKAADU VILLAGE, DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.C.A.ANOOP. RESPONDENT: ---------------------- * MADHU, W/O.KOCHURAMAN, MAROTTIKUNNATH, THAZHEKADU VILLAGE DESOM, MUKUNDAPURAM TALUK. *(NAME CORRECTED). *THE NAME OF RESPONDENT STANDS CORRECTED AS `MADHAVI' INSTEAD OF `MADHU' AS PER ORDER DATED 02/08/2011 IN I.A. 12403/2011. BY ADVS. SRI.A.BALAGOPALAN, SRI.SOJO J.KALLIDUKIL, THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.1803/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE OBJECTION TO THE COMMISSION REPORT IN I.A. 1789/2008 IN O.S. NO.1041/2008 BEFORE THE MUNSIFF COURT, IRINJALAKUDA. EXT.P.2: COPY OF THE OBJECTION TO THE AMENDMENT APPLICATION I.A. 4843/2010 IN O.S. 1041/2008. EXT.P.3: COPY OF THE ORDER DTD. 14/01/2011 IN I.A. NO.4843/2010 IN O.S. 1041/08. EXT.P.4: COPY OF THE AFFIDAVIT AND PETITION FOR APPOINTMENT OF ADVOCATE COMMISSIONER. EXT.P.5: COPY OF THE ORDER DTD. 16/03/2011 IN I.A. 691/2011 IN O.S. NO.1041/2008 PASSED BY THE PRINCIPAL MUNSIFF, IRINJALAKUDA. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1803 of 2011 ==================================== Dated this the 19th day of December, 2011 J U D G M E N T Exhibit P5, order passed by the learned Principal Munsiff, Irinjalakuda on I.A. No.691 of 2011 in O.S. No.1041 of 2008 is under challenge. Petitioner filed Ext.P4, application to appoint a Commissioner for measurement of properties with reference to document No.985 of 1981. That application was dismissed as per Ext.P5, order. 2. Respondent and another filed O.S. No.1041 of 2008 for fixation of boundary and consequential reliefs. Advocate Commissioner appointed by the court below submitted report and plan (a copy of which is not produced along with this Original Petition) identifying properties covered by settlement deed No.2227 of 1974 as per which both parties claimed title. Petitioner preferred objection to the report followed by an application to appoint a fresh commission to measure the properties with reference to document No.985 of 1981 also. It is contended by learned counsel that it is by virtue of settlement deed No.2227 of 1974 and document No.985 of 1981 that petitioner got title and O.P(C) No.1803 of 2011 -: 2 :- possession over the total extent of 64 cents lying contiguous and that the Advocate Commissioner has not made reference to document No.985 of 1981 while measuring the properties. According to the learned counsel measurement of properties with the help of that document also is necessary. 3. Learned counsel for respondent contended that the application itself is not maintainable since only one of the plaintiffs is made a party to this proceeding and that too under a wrong description of the name. 4. It is not disputed before me that respondent and another filed the suit for fixation of boundary and in Ext.P4, application respondent alone is made a party. It is necessary that the other plaintiff is also made a party in Ext.P4, application. 5. Learned Munsiff has to consider whether having regard to the claim of petitioner that property belonging to him - 64 cents covered by the two documents in question lying contiguous it is necessary to get the properties measured with reference to document No.985 of 1981 also. For that purpose it may not be necessary to set aside or remit the existing report. It may be sufficient that a report is obtained with reference to measurement of properties based on document No.985 of 1981 O.P(C) No.1803 of 2011 -: 3 :- also. But I am not expressing any final opinion in the matter in this proceeding in view of the decision I propose to take and these matters are to be decided by the learned Munsiff. I leave that matter to the decision of the learned Munsiff. Resultantly, Original Petition is allowed. Exhibit P5, order on I.A. No.691 of 2011 in O.S. No.1041 of 2008 is set aside and that application is remitted to the court below for fresh decision after giving opportunity to the petitioner to cure the defects in Ext.P4, application. Learned Munsiff shall decide Ext.P4, application afresh after defects are cured considering the nature of objections raised by petitioner to the report and plan already submitted by the Advocate Commissioner. THOMAS P. JOSEPH, JUDGE. vsv