IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 OP(C).No. 673 of 2011(O) ----------------------------------- PETITIONER: ------------------- LONAPPAN,S/O.KANNAMPILLY DEVASSY, PERAMBRA DESOM,KODAKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.T.N.MANOJ. RESPONDENTS: ------------------------ 1. ANTO,S/O.KANNAMPILLY LONAPPAN, PERMABRA DESOM,KODAKARA VILLAGE,MUKUNDAPURAM TALUK – 686 303. 2. THOMAS,S/O KANNAMPILLY LONAPPAN, PERMABRA DESOM,KODAKARA VILLAGE, MUKUNDAPURAM TALUK – 686 303. R1 BY ADV. SRI.JIJO PAUL. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(CIVIL). NO. 673/2011-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. 75/2009. EXT.P.2: COPY OF THE WRITTEN STATEMENT WITH A COUNTER CLAIM IN O.S. 75/2009. EXT.P.3: COPY OF THE PETITION FOR APPOINTING ADVOCATE COMMISSIONER. EXT.P.4: COPY OF THE OBJECTIONS FILED TO THE SAID PETITION. EXT.P.5: COPY OF THE PETITION I.A. 5081/2010 SEEKING A DIRECTION TO CONSIDER THE WORK MEMO. EXT.P.6: COPY OF THE ORDER DTD. 07/01/2011 IN I.A. 5081/2010. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. N.K.BALAKRISHNAN, J. ---------------------------------------------------- O.P.(Civil)No.673 of 2011 ---------------------------------------------------- Dated this the 5th day of April, 2011 Judgment The plaintiff is the petitioner. He filed a suit for injunction against the respondents restraining them from trespassing into the plaint schedule property. The defendants in the written statement raised a counter claim seeking fixation of the boundary. For that purpose the defendants filed an application for issuance of a commission. The plaintiff sought to file work memo to be given to the Commissioner to identify both properties so as to have a proper adjudication of the matter. It was turned down by the court below stating that since it is a simple suit for injunction, commission at the instance of the plaintiff is not required. The learned counsel for the plaintiff would submit that the defendants actually disputed the extent of the land in the possession of the plaintiff. In order to ascertain the boundaries and the extent of the property held by the plaintiff so as to sustain his prayer for injunction, the Commissioner has to measure the property and identify the boundaries based on the boundaries and measurements shown in OP(C) 673/11 2 his title deed. Similarly, since the defendants raised a counter claim for fixation of the boundary, certainly a commission is required for that purpose also. In short, the properties have to be measured and the boundaries of the properties held by the parties have to be fixed. The work memo sought to be executed by the Commissioner would help the court to have a proper adjudication of the point in dispute. The learned counsel for the defendant would submit that plaintiff cannot seek measurement of the defendant's property so as to advance a case that plaintiff's property is included or falls in the property of the defendant. But, in order to get a decree for fixation of the boundary, the property of the defendant also may have to be measured. It will not in any way affect the right or interest of the defendants. Therefore, the petition is allowed and Ext.P6 order is set aside. The court below is directed to handover Ext.P5 work memo to the Commissioner. It is needless to mention that the plaintiff has to bear the expenses with regard to the work to be done on the basis of Ext.P5 work memo. The court below will fix the remuneration payable by the plaintiff considering the nature of the works to be done by the Commissioner based on the work OP(C) 673/11 3 memo filed by the plaintiff and the court below will direct the plaintiff to pay that amount to the Commissioner. N.K.BALAKRISHNAN, JUDGE. srd OP(C) 673/11 4