IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 OP(C).No. 2541 of 2011(O) ------------------------------------ [OS.NO.26/2009 OF ADDITIONAL MUNSIFF COURT,CHERTHALA] .................... PETITIONER: ------------------- SUNNI JOSEPH, S/O.JOSEPH,POOTHURAYIL, VAYALAR EAST VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT. BY ADVS. SRI.G.P.SHINOD, SRI.RAM MOHAN.G. RESPONDENTS: ------------------------ 1. MATHEW VARGHESE, CHANGADAKARIYIL,VAYALAR EAST VILLAGE, CHERTHALA,ALAPPUZHA DISTRICT. 688 524. 2. SHIJI VARGHESE, W/O.MATHEW VARGHESE,CHANGADAKARIYIL, VAYALAR EAST VILLAGE, CHERTHALA,ALAPPUZHA DISTRICT. 688 524. 3. CHERTHALA CO-OPERATIVE URBAN BANK, REPRESENTED BY ITS SECRETARY, CHERTHALA, ALAPPUZHA 688 524. 4. CHERTHALA CO-OPERATIVE URBAN BANK, REPRESENTED BY ITS SPECIAL SALE OFFICER, CHERTHALA, ALAPPUZHA- 688 524. R2 BY ADV. SRI.J.OM PRAKASH, R3 BY ADV. SRI.K.G.CLEETUS. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2541/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE PLAINT IN O.S. NO.26/2009 ON THE FILES OF THE COURT OF THE ADDITIONAL MUNSIFF, CHERTHALA. EXT.P.2: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE R.2. IN O.S. NO. 26/2009 BEFORE THE COURT OF THE ADDITIONAL MUNSIFF, CHERTHALA. EXT.P.3: COPY OF THE WRITTEN STATEMENT TO THE COUNTER CLAIM SUBMITTED BY THE PETITIONER AND HIS MOTHER IN O.S. NO. 26/2009 BEFORE THE COURT OF THE ADDITIONAL MUNSIFF, CHERTHALA. EXT.P.4: COPY OF THE COMMISSION REPORT AND PLAN SUBMITTED BY ADVOCATE COMMISSIONER, R. PRAMOD DTD. 24/05/2011 BEFORE THE COURT OF THE ADDITIONAL MUNSIFF, CHERTHALA. EXT.P.5: COPY OF THE COMMISSION APPLICATION I.A. NO.1621/2011 IN O.S. NO. 26/2009 FILED BEFORE THE COURT OF THE ADDITIONAL MUNSIFF, CHERTHALA. EXT.P.6: COPY OF THE ORDER DTD. 05/07/2011 OF THE COURT OF THE ADDITIONAL MUNSIFF, CHERTHALA IN I.A. NO.1621/2011 IN O.S. NO.26/2009. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.2541 of 2011 --------------------------------------- Dated this 13th day of December, 2011 JUDGMENT Second plaintiff in O.S.No.26 of 2009 of the Court of learned Additional Munsiff, Cherthala is the petitioner before me, challenging Ext.P6, order whereby the request made by petitioner and the first plaintiff for a survey commission was disallowed. 2. Petitioner and first plaintiff sued respondents for declaration of title over plaint A schedule claiming that they are in possession and enjoyment of the said property since long and perfected title by adverse possession and the law of limitation. It is their case that while they are in possession and enjoyment of property, second respondent created encumbrance in favour of the third respondent over the said property as if it belonged to the second respondent as per document No.470 of 1998. Third respondent initiated action based on the mortgage. At that stage, petitioner and the first plaintiff were constrained to file the suit seeking reliefs as aforesaid. Respondents resisted the suit on various grounds. Learned Munsiff obtained a report and plan (Ext.P4) through the Advocate Commissioner where item No.2 O.P(C).No.2541 of 2011 -: 2 :- property comprised in survey 188/5 is identified. Later, petitioner came with Ext.P5, application to depute an Advocate Commissioner with the assistance of a Surveyor to report on matters referred to therein. The purport of that application was to show that property regarding which mortgage was created as reported by the sub committee of third respondent is entirely different from item No.2. Attempt of petitioner was to show that possession of petitioner and the first plaintiff over item No.2 was not affected at any point of time and that the mortgage created was not with respect to item No.2. Contesting respondents resisted the application. Learned Munsiff by Ext.P6, order dismissed the application. Learned counsel for petitioner has argued that a survey commission as applied for, is necessary for a proper adjudication of the dispute. 3. Learned counsel for second respondent contended that attempt of petitioner is only to protract the proceeding. It is also contended that so far as Ext.P4, report and plan are there, a further report and plan are not required. 4. I have gone through Ext.P5, application and find that several of the matters sought to be ascertained in that application are irrelevant and unnecessary. But, so far as the prayer in item O.P(C).No.2541 of 2011 -: 3 :- No.4 is concerned, I find some relevance in that, the prayer is to identify the property with reference to the report of sub committee of the third respondent and the boundaries mentioned therein. There is also a request to note at what distance property covered by document No.470 of 1998 is situated from item No.2 of plaint schedule. The prayer made as item No.4 in Ext.P5, application having regard to the contentions raised by petitioner and the first plaintiff appears to be relevant for a proper decision. But, for that purpose it is not necessary to interfere with the existing report and plan and what is required is only to get a report on item No.4 in the application. In that view of the matter I am inclined to interfere with Ext.P6, order to the extent it concerned request made as item No.4 in Ext.P5, application. Resultantly this original petition is allowed. Ext.P6, order is set aside and I.A.No.1621 of 2011 in O.S.No.26 of 2009 will stand allowed to the extent it concerned item No.4 requested to be ascertained. Learned Munsiff is directed to appoint the same Commissioner and Surveyor as far as possible to report on the matters asked for as item No.4 in Ext.P5, application. The batta payable to the Commissioner and Surveyor by the petitioner shall be fixed by the learned Munsiff. Considering the fact that the O.P(C).No.2541 of 2011 -: 4 :- suit is of the year, 2009, learned Munsiff is directed to issue necessary orders to the Advocate Commissioner and Surveyor to expedite their proceeding and submit report as early as possible. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-