IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 WP(C).No. 5173 of 2008(N) ------------------------- OS.64/2001 of SUB COURT,KATTAPPANA .................... PETITIONER: ------------- SABU, S/O. PAULOSE, AGED 40 YEARS THELAKKATTU HOUSE, POOPARAKARA, POOPARA VILLAGE. BY ADV. SRI.A.T.ANILKUMAR RESPONDENTS: ----------------- 1. NAGARAJAN AGED ABOUT 45 YEARS S/O. MARIAPPAN, NITHYA BHAVAN POOPARAKARA, POOPARA VILLAGE. 2. ABDUL RAHMAN & S/O. MOIDEEN AYKKATTU HOUSE,POOPARAKARA, POOPARA VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 5173 OF 2008 --------------------- Dated this the 13th day of February, 2008 JUDGMENT This writ petition is preferred against the order of the Subordinate Judge, Kattappana, in IA 112/04 in OS 64/01. 2. The said IA was considered by the learned Subordinate Judge on 17.2.05 wherein it was held that “the Commissioner has filed plan relying on resurvey plan which has not come into force”. Subsequently, this order was challenged before this court in WPC No. 29096/05 whereby this court directed the Subordinate Judge to take a fresh decision in the matter. After the same, the court on 13.8.07 had passed an order dismissing the application on the ground that there is no need to remit the report and plans to the Commissioner. 3. The grievance of the writ petitioner, who is the plaintiff in the suit, is that he is holding the property on the basis of document of title and therefore the property is to be measured on the basis of his title deed for a proper appreciation of the matter. WPC NO 5173/08 2 4. There is considerable force in the said contention. Whether the resurvey plan will prevail or the document of title will prevail are all matters, which the court may have to consider after the stage of taking evidence in the suit. When the very same Judge has opined that the resurvey plan has not become final and when the plaintiff contends that he is holding possession of the property on the basis of title deed, it is necessary to have the property measured on the strength of the document also. Therefore, I direct the court below to remit the Commissioner’s plan and report with a direction to measure the property in accordance with the title deed of the plaintiff and old survey records. If the defendants want any particulars to be noted, that also shall be noted. The larger question which is to be relied upon is whether the resurvey records or the document of title with old survey records, is a matter which the court can consider after the stage of evidence before disposal of the case. The writ petition is disposed of as above. M.N.KRISHNAN, JUDGE vps WPC NO 5173/08 3