IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 34378 of 2008(P) -------------------------- AGAINST THE ORDER DATED 03/10/2008 IN I.A 1666/2008 IN OS.188/2007 of MUNSIFF COURT, PUNALUR .................... PETITIONER(S): --------------- MASOOD RAWTHER, S/O. ABDUL KAREEM RAWTHER, THUNDIL VEEDU, THADIKKADU THERUVIL, ARAKKAL VILLAGE, REP. BY POWER OF ATTORNEY HOLDER, JAHARUNIZA, W/O.MASOOD RAWTHER, THUNDIL VEEDU, THADIKKADU THERUVIL,ARAKKAL VILLAGE, PATHANAPURAM DISTRICT BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G RESPONDENT(S): --------------- 1. ABDUL RASHEED RAWTHER, RIYAS MANZIL, THADIKKADU, ARAKKAL VILLAGE 2. P. ABDUL KAREEM RAWTHER, THUNDIL VEEDU, THADIKKADU THERUVIL, 3. SARA UMMAL, W/O. ABDUL KAREEM RAWTHER, RIYAS MANZIL, THADIKKADU, ARAKKAL VILLAGE 4. A. BASHEER RAWTHER, S/O.ABDUL KAREEM RAWTHER, RIYAS MANZIL, THADIKKADU, ARAKKAL VILLAGE 5. SAKKER HUSAIN, S/O.LATHEEF BEEVI, KANNOR KAVIL VEEDU, THADIKKADU, ARAKKAL VILLAGE 6. SAJID HUSAIN, S/O. .LATHEEF BEEVI, KANNOR KAVIL VEEDU, THADIKKADU, ARAKKAL VILLAGE ADV. SRI.B.KRISHNA MANI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioners Exhibits: Ext.P1: True copy of Plain in O.S No.188/07 Ext.P2: True copy of the written statement in O.S.No.188/2007 Ext.P3: True copy of the I.A.No.1666/07 Ext.P4: True copy of the objection to P3 Ext.P5: True copy of the order dated 3.10.2008 in I.A.No.1666/08 in O.S.No.188/07 on the files of the Munsiff's Court, Punalur. /True copy/ P.A. To Judge S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No. 34378 OF 2008 -------------------------- Dated this the 16th day of July 2009 ------------------------------------- JUDGMENT Writ petition is filed seeking the following reliefs. i) To call for the records which led to the issuance of Ext.P5 and to issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the same. ii) To issue writ in the nature of mandamus or any other appropriate writ, order or direction commanding the court below to allow Ext.P3. iii) To grant such other reliefs and cost as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case. W.P.(C).No. 34378 OF 2008 2 2. Petitioner is the plaintiff in O.S 188/07 on the file of the Munsiff Court, Punalur and respondents are the defendants. Suit is one for perpetual prohibitory injunction. Plaintiff applied for a commission to measure out the plaint property with respect to survey plan and his title documents, with the assistance of a surveyor,and that was objected to by the defendants contending that survey measurement is not required for. The learned Munsiff dismissed the application for the commission. Propriety and correctness of that order is impeached in the writ petition by the plaintiff invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Having regard to the submissions made and perusing Ext.P5 W.P.(C).No. 34378 OF 2008 3 order, I find the grievance canvassed by the plaintiff against Ext.P5 order merits consideration. The identity of the suit property over which the petitioner sought for a decree of perpetual prohibitory injunction was disputed by the defendants in their written statement. That being so, no decree for injunction without the property being identified is possible and therefore, measurement of that property with reference to his title deed and survey plan as requested for is absolutely necessary. The learned Munsiff is not correct in stating that the question of possession alone is involved in the suit for injunction and so much so, no survey measurement is necessary. When the identity of the property is disputed, without that question being resolved, no decree of injunction is permissible. True, possession is the main criteria for injunction but identity of the property has to be established, W.P.(C).No. 34378 OF 2008 4 otherwise, disastrous consequences will follow if a decree is granted. Setting aside the impugned order I direct the learned Munsiff to pass appropriate order on Ext.P3 application moved by the plaintiff, for a proper and fair disposal of the suit. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv