IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 OP(C).No. 1019 of 2010() ------------------------ PETITIONER/IST DEFENDANT -------------------------------------------- P.M.AZEEZ RAWTHER,PUTHUPARAMBIL, KANGAZHA.P.O,KOTTAYAM DISTRICT. BY ADV. SRI.ESM.KABEER RESPONDENTS: --------------- 1. ZAKEER HUSSAIN,PADIPURAKKAL HOUSE, KOTARAKAVU,MAVELIKKARA. 2. THE VILLAGE OFFICER,MAVELIKKARA. 3. THE TAHSILDAR,MAVELIKKARA. 4. THE DISTRICT COLLECTOR,ALAPPUZHA. GOVERNMENT PLEADER: SRI B JAYASURYA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1019 of 2010 --------------------------------------- Dated this 08th day of December, 2010 JUDGMENT Defendant No.1 in O.S.No.326 of 2006 of the court of learned Munsiff, Mavelikkara is the petitioner before me, aggrieved by Ext.P10, order refusing to appoint an Advocate Commissioner to identify the counter claim schedule property with reference to the title deed of petitioner. Respondents/plaintiffs sued for a decree for prohibitory injunction against petitioner trespassing into the suit property claimed to be belonged to respondent No.1 as per document Nos.2338 of 2003 and 1066 of 2004. It is the case of respondent No.1 that the said property along with certain other items were covered by document No.759 of 1970 and that petitioner purchased a portion of the property covered by document No.759 of 1970 situated on the east of suit property. Respondent No.1 apprehended that petitioner might trespass into the suit property. Petitioner/defendant No.1 filed written statement and counter claim claiming relief in respect of 48 sq.meters in old survey 95/1A and RS.No.89/45-3 as per Ext.P1, sale deed. On the request of parties, Advocate Commissioner inspected the O.P(C).No.1019 of 2010 : 2 : property and submitted 3 reports and 2 plans. It is while so, that petitioner filed Ext.P9, application to depute the Advocate Commissioner again to measure counter claim schedule property with the assistance of Village Officer with reference to the title deed relied on by petitioner (Ext.P1). Learned Munsiff disallowed Ext.P9 vide Ext.P10, order. Learned counsel contended that as per the third plan submitted by Advocate Commissioner extent of the property belonging to the petitioner is shown as 1.15sq. meter. 2. It is seen that there are now 3 reports and 2 plans in respect of the suit property as well as counter claim schedule property. Learned Munsiff observed that Ext.C2(b), plan (referring to counter claim schedule property) was prepared after measurement of that property with reference to the title deed relied on by petitioner and the survey records. The Surveyor has shown the plot of land claimed by petitioner (extent is stated as 48sq. meters) as per Ext.P1, title deed as 'EFGHE' plot. Ext.C2 (a), plan also refers to the counter claim schedule property but the extent on measurement was found to be 32sq. meters. Respondent No.1 has a case that though Ext.P1, title deed relied on by petitioner stated that they acquired 48sq. meters that extent was fraudulently stated with intend to grab property belonging to the respondent No.1. O.P(C).No.1019 of 2010 : 3 : 3. Now request is to depute an Advocate Commissioner to measure the counter claim schedule property with reference to title deed and the assistance of Village Officer. Learned Munsiff has pointed out that Ext.C2(b), plan relating to the counter claim schedule property was prepared after measuring the said property with the title deed relied on by petitioner and hence, no purpose will be served by appointing a Commissioner again for preparing yet another plan. I have gone through the order under challenge. I do not find reason to interfere. After all, it is for the trial court to decide which of the plans before it is to be accepted having regard to the facts, circumstances and evidence on record. In that view no interference is required. This petition is disposed of as above. (THOMAS P JOSEPH, JUDGE) Sbna/-