IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 WP(C).No. 4961 of 2010(O) -------------------------------------- OS.NO. 294/2005 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER(S): ------------------------ 1. SYNABA, AGED 74 YEARS, W/O.MEETHIAN, VARAPPOTH MUNDETH HOUSE, KARUKULANGARA, PATTIMATTOM VILLAGE. 2. ISMAIL, AGED 51 YEARS, S/O.MEETHIAN, VARAPPOTH MUNDETH HOUSE, KARUKULANGARA, PATTIMATTOM VILLAGE. 3. SULAIMAN, AGED 43 YEARS, S/O.MEETHIAN, VARAPPOTH MUNDETH HOUSE, KARUKULANGARA, PATTIMATTOM VILLAGE. 4. ABDULKHADER, AGED 54 YEARS, S/O.MAKKARKUTTY HOUSE, AIMANAKKUDY HOUSE, CHELAKKULAM KARA, PATTIMATTOM VILLAGE. 5. RAJU, AGED 42 YEARS, S/O.CHATHAN, KUZHIPPILLYKKUDY HOUSE, CHELAKKULAM KARA, PATTIMATTOM VILLAGE. 6. MUHAMMED, AGED 59 YEARS, S/O.ABOOBACKER, PARAKKUNNATHU HOUSE, CHELAKKULAM KARA, PATTIMATTOM VILLAGE. 7. IBRAHIM @ AVARU, AGED 44 YEARS, S/O.MUHAMMED, ARACKAKKUDY HOUSE, CHELAKKULAM KARA, PATTIMATTOM VILLAGE. BY ADV. SRI.G.RAJAGOPAL SMT.N.RENJINEE DEVI RESPONDENT(S): -------------------------- 1. MUHAMMADALI, AGED ABOUT 52 YEARS, S/O.BAVA, VARAPPOTH MUNDETH HOUSE, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, 2/- -2- WP(C)NO.4961/2010 2. FATHIMA, AGED 50 YEARS, D/O.BAVA, VARAPPOTH MUNDETH HOUSE, CHELAKKULAM KARA, PATTIMATTOM VILLAGE 3. A.K.SHAHUL HAMEED, AGED ABOUT 50 YEARS, HOUSE NO.3/1585, IVALIL HOUSE, KALAMASSERY, ERNAKULAM DISTRICT. R1 BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.4961/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.294 OF 2005 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. P2 COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1 TO 3, 5 TO 9 IN O.S.NO.294 OF 2005 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. P3 COPY OF THE WRITTEN STATEMENT FILED BY 4TH DEFENDANT IN O.S.NO.294 OF 2005 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. P4 COPY OF THE COMMISSION REPORT ALONGWITH SKETCH FILED BY THE ADVOCATE COMMISSIONER PURSUANT TO THE ORDER IN I.A.NO.382 OF 2005 IN O.S.NO.294 OF 2005 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. P5 COPY OF THE OBJECTIONS FILED BY THE 5TH, 6TH, 7TH AND 8TH DEFENDANTS TO EXHIBIT-P4 REPORT. P6 COPY OF THE I.A.NO.1587 OF 2009 IN O.S.NO.294 OF 2005 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. P7 COPY OF THE OBJECTIONS FILEDBY THE 1ST AND 2ND RESPONDENTS IN I.A.NO.1587 OF 2009 IN O.S.NO.294 OF 2005 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. P8 COPY OF THE ORDER DATED 14/01/2010 IN I.A.NO.1587 OF 2009 IN O.S.NO.294 OF 2005 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.4961 of 2010 -------------------------------------- Dated this the 8th day of August, 2011. JUDGMENT Petitioners are defendants 1 to 3, 5 and 7 to 9 in O.S.No.294 of 2005 of the court of learned Munsiff, Perumbavoor challenging Ext.P8, order to the extent it concerned dismissal of I.A.No.1587 of 2009 refusing request of petitioners to remit Ext.P4, report and plan to the Advocate Commissioner for further verification and report. Respondents 1 and 2 filed the suit for a decree for fixation of northern boundary of entire properties and for recovery of plaint B schedule on the strength of their title. Plaint A schedule is described as 3.10 ½ acres out of 6.21 acres in survey No.364/1B and plaint B schedule is said to be 50 cents forming part of plaint A schedule allegedly trespassed by petitioners and others. Petitioners claimed that their entitlement is to the property covered by the same survey number (364/1B) and as per document No.821 of 1970. 2. An Advocate Commissioner was appointed with the assistance of a Surveyor to measure plaint A and B schedule properties with reference to the document of title relied on by respondents 1 and 2 and the old survey plan. Pursuant to that, the Advocate Commissioner filed Ext.P4, report and plan dated February 10, 2009 where plaint A and B schedule items are identified. WP(C) No.4961/2010 2 3. At that stage petitioners came with I.A.No.1587 of 2009 for remission of Ext.P4, report and plan. According to them the report and plan are not prepared with reference to the revenue records and re-survey records but merely based on the document of title relied on by respondents 1 and 2. It is contended that document No.821 of 1970 relied on by petitioners has not been considered by the Advocate Commissioner. Learned Munsiff has dismissed I.A.No.1587 of 2009 along with I.A.No.551 of 2009 by Ext.P8, common order dated January 14, 2010. That order is under challenge. 4. Though various contentions are raised by counsel for petitioners, presently the only request made is that the Advocate Commissioner may be directed to measure the properties of petitioners with reference to document No.821 of 1970 as well and submit a report and plan accordingly. Learned counsel submitted that though in the plaint schedule there is no reference to the road or canal passing through or bounding the suit property, Advocate Commissioner in Ext.P4, report and plan has shown the canal and road passing through the properties claimed by petitioners. It is contended that according to respondents 1 and 2, plaint B schedule is 50 cents allegedly forming part of plaint A schedule. It is seen from the report of the Advocate Commissioner that the total extent of plaint B schedule is 82.975 cents. Plaint A schedule as against the description in the plaint as 3.10 acres is stated as 2.27.525 acres acres. WP(C) No.4961/2010 3 5. I have heard learned counsel for respondents 1 and 2 as well. According to the learned counsel, there is no reason to interfere with Ext.P4, report and plan. It is also pointed that at the appropriate stage petitioners did not request the Advocate Commissioner by filing work memo to ascertain any matter which is now sought. 6. Having regard to the prayer in the suit and this being a dispute based on title, I am inclined to allow petitioners identify the property they claim as per document No.821 of 1970 and other documents referred to in Ext.P6, application. For the said purpose it is not necessary to set aside Ext.P4, report and plan. What is required is to collect additional materials as requested in Ext.P6. Resultantly this Original Petition is allowed, Ext.P8, order dated January 14, 2010 to the extent it concerned I.A.No.1587 of 2009 (in O.S.No.294 of 2005) is set aside and Ext.P6, application (I.A.No.1587 of 2009) will stand allowed. Learned Munsiff shall appoint the same Advocate Commissioner and Surveyor (learned counsel for respondents 1 and 2 submits that the same Surveyor is available), as far as possible and ascertain matters requested for in Ext.P6, application also. The batta payable to the Advocate Commissioner and Surveyor by the petitioners shall be fixed by the learned Munsiff. In case respondents 1 WP(C) No.4961/2010 4 and 2 want any further clarification in the matter of Ext.P4, report and plan already filed, it is open to respondents 1 and 2 to file work memo before the learned Munsiff who shall decide on that matter. THOMAS P.JOSEPH, Judge. cks