IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 OP(C).No. 2673 of 2011(O) -------------------------------- AGAINST THE ORDER DATED 31/05/2011 IN EP.234/2008 IN OS.290/2005 of PRL. MUNSIFF COURT, PALAKKAD .................... PETITIONER: --------------- C.L.VENKITACHALAM, S/O.LATE LAKSHMINARAYANA KOUNDER, KESAVA FARM, KANJIKODE, PUDUSERY CENTRAL VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN SMT.P.G.BABITHA RESPONDENT(S): ---------------------- 1. C.L.RADHAKRISHNAN, S/O.LATE LAKSHMINARAYANAN KOUNDER RESIDING AT NO.97, WEST PERIYASWAMI ROAD, R.S.PURAM, COIMBATORE - 641 002. 2. VALSALA, W/O.THANKAVELU,RESIDING AT NO.36, UNION BANK ROAD, 2ND STREET, PERIYANAIKKAN PALAYAM, COIMBATORE - 641 001. 3. RANGANAYAKI, W/O.KANNAPPAN,RESIDING AT NO.91, RAMACHANDRA ROAD, R.S.PURAM, COIMBATORE - 641 002. 4. CHITRA, W/O.PADMANABHAN, RESIDING AT NO.1/188, SELVAPURAM, KOVILPALAYAM, POLLACHI - 642 001. 5. C.L.GOPALAKRISHNAN, S/O.LATE LAKSHMINARAYANA KOUNDER, KESAVA FARM, KANJIKODE, PALAKKAD - 678 621. 6. C.L.PARANTHAMAN, S/O.LATE LAKSHMINARAYANA KOUNDER, KESAVA FARM, KANJIKODE, PALAKKAD - 678 621. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2673/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO.290/2005. P2: COPY OF THE JUDGMENT IN O.S.NO.290/2005. P3: COPY OF THE DECREE IN O.S. NO.290/2005. P4: COPY OF THE DECREE IN O.S. NO.184/1966. P5: COPY OF THE PLAN ACCOMPANYING THE DECREE IN O.S. NO.184/1966. P6: COPY OF THE DOCUMENT NO.3899/1985 OF S.R.O. PALAKKAD. P7: COPY OF THE EXECUTION PETITION NO.234/2008 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, PALAKKAD. P8: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER. P9: COPY OF THE PLAN SUBMITTED ALONG WITH THE COMMISSION REPORT. P10: COPY OF THE E.A. NO.449/2010. P11: COPY OF THE ORDER IN O.S. NO.534/2007 RENDERED BY THE MUNSIFF COURT, PALAKKAD. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2673 of 2011 ==================================== Dated this the 12th day of August, 2011 J U D G M E N T Respondents 1 to 4 appear through counsel. Since the order impugned is passed on E.A. No.449 of 2010 filed by respondents 1 to 4 and, and as learned counsel on both sides submit respondent 5 onwards are not persons aggrieved by the impugned order notice to them is dispensed with. 2. A dispute regarding identity of the decree schedule property in the course of execution of decree in E.P. No.234 of 2008 in O.S. No.290 of 2005 of the court of learned Principal Munsiff, Palakkad has brought the parties to this Court in this Original Petition. Petitioner obtained an ex parte decree for prohibitory injunction against the contesting respondents. Unfortunately there was no report or plan of the Advocate Commissioner obtained on the trial side before the decree was passed. Petitioner alleged that respondents constructed fence in the decree schedule property, violated the decree and hence accordingly filed E.P. No.234 of 2008 under Order XXII Rule 32 of the Code of Civil Procedure (for short, “the Code”). Respondents 1 O.P(C) No.2673 of 2011 -: 2 :- to 4 contended that the fence was constructed in their own property. Executing court deputed an Advocate Commissioner who submitted Exts.P8, report and P9, plan. Respondents 1 to 4 were not satisfied with the same and filed E.A. No.449 of 2010 to set aside the report and plan. That application was objected by the petitioner but the executing court by Ext.P10, order allowed E.A. No.449 of 2010 and set aside the report and plan. That order is under challenge. 3. Learned counsel for petitioner contends that respondents 1 to 4 wanted the property to be measured with reference to the final decree in O.S. No.534 of 2007 which has nothing to do with the petitioner who is not a party to the said suit or the suit property. It is contended that the final decree in that case does not concern the suit property. In the circumstances court below was not justified in setting aside Exts.P8 and P9. Counsel for respondents 1 to 4 contended that suit property is the property scheduled in O.S. No.534 of 2007 and hence the property is to be measured with reference to the final decree in that case as well. 4. Facts which are not in dispute are that properties including the suit property originally belonged to O.P(C) No.2673 of 2011 -: 3 :- Lakshminarayana Kounder and his brother, Kesava Kounder. Those properties were partitioned as per the preliminary and final decrees in O.S. No.184 of 1966. As per that decree, the B schedule therein was allotted to Kesava Kounder while the C schedule was allotted to Lakshminarayana Kounder. Petitioner claims right, title, interest and possession of the property in the said B schedule under Kesava Kounder as per Ext.P6, assignment deed. At the same time respondents claimed right under a Gift deed executed by Lakshminarayana Kounder. Now the dispute is concerning identity of the 1.20 acres in Sy. No.612/2 claimed by petitioner and the 2.30 acres claimed by respondent 1 to 4 in the same survey. 5. To resolve that dispute, according to the petitioner properties are to be measured as per the final decree and B and C schedules in the plan in O.S. No.184 of 1966. Learned counsel for respondents 1 to 4 contended that since according to them the disputed suit property forms part of the decree in O.S. No.534 of 2007, the said decree has to be taken into account. 6. It is not disputed before me that Kesava Kounder and Lakshminarayana Kounder got B and C schedules respectively in the plan in the final decree in O.S. No.184 of 1966. Parties are O.P(C) No.2673 of 2011 -: 4 :- claiming under the said two brothers. Therefore entitlement of petitioner (regarding the disputed property - 1.20 acres in Sy. No.612/2) must come in the B schedule in the final decree in O.S. No.184 of 1966. What is required is to identify the disputed property with reference to the final decree in O.S. No.184 of 1966. 7. Learned counsel for respondent 1 to 4 contended that the disputed properties were not measured with reference to the resurvey plan (of old survey No.612/2). It is sufficient to direct that the Advocate Commissioner shall measure the suit property with reference to the re-survey plan pertaining to old survey No.612/2 also (apart from measuring the property as per old survey and the B schedule in the decree in O.S. No.184 of 1996). It is open to the executing court to decide which of the plans being prepared by the Advocate Commission is acceptable having regard to the documents of title on which parties rely. 8. In the light of the above discussion what is required is to direct the Advocate Commissioner to ascertain the disputed items with reference to the final decree and plan in O.S. No.184 of 1966 and as requested by respondents 1 to 4, with reference to the re-survey plan relating to old Sy. No.612/2 as well. Resultantly, Original petition is disposed of as follows: O.P(C) No.2673 of 2011 -: 5 :- (a) In substitution of the directions contained in Ext.P11, order the following directions are issued: (i) The Advocate Commissioner is directed to identify the disputed items in old Sy.No.612/2 with reference to the final decree in O.S. No.184 of 1966 and the approved plan in that case and prepare a plan. (ii) The Commissioner may prepare a separate plan identifying the disputed items in old Sy. No.612/2 with reference to the re-survey records. (iii) Executing court shall decide which of the two plans could be accepted having regard to the title claimed by the parties. (b) Since I am told that a new Commissioner was appointed learned Munsiff shall issue necessary directions to that Commissioner to identify the O.P(C) No.2673 of 2011 -: 6 :- properties as above stated. (c) I make it clear that it will be open to both sides to file objections to the report and plans that may be submitted by the Advocate Commissioner. (d) If respondents 1 to 4 desire to file any work memo to ascertain any other matter (within the scope of the directions given above) such work memo shall be filed in the executing court and the executing court shall decide on that matter also. THOMAS P. JOSEPH, JUDGE. vsv