IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 OP(C).No. 2112 of 2011(O) ------------------------------------- I.A.4783/2010 IN OS.487/2008 OF MUNSIFF COURT, CHAVAKKAD .................... PETITIONER/1ST DEFENDANT -------------------------------------------- SUDEESHKUMAR, AGED 51 YEARS, S/O. THOZHUTHUMPARAMBIL VASU, THALIKULAM VILLAGE, CHAVAKKAD THALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENT/PLAINTIFF & 2ND DEFENDANT ------------------------------------------------------------------- 1. SUDHA, W/O. THAITHARA VIDYADHARAN AND D/O.THOZHUTHUMPARAMBIL VASU, ERIYAD VILLAGE, KODUNGALLUR THALUK-680 506. 2. SUMA, W/O. MANDANTHARA RAMDAS AND D/O. THOZHUTHUMPARAMBIL VASU, PAPPINIVATTAM VILLAGE, KODUNGALLUR TALUK-680 506. 3. CHANDRA, W/O. THOZHUTHUMPARAMBIL VASU, THALIKULAM VILLAGE, CHAVAKKAD THALUK THRISSUR DISTRICT-680 506. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 2112 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.487/2008. EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO.487/2008. EXT.P3: COPY OF THE 2ND WILL ALLEGEDLY EXECUTED BY VASU. EXT.P4: COPY OF THE APPLICATION IN I.A.4783/2010 IN O.S. 487/2008. EXT.P5: COPY OF THE OBJECTION IN I.A.4783/2010 IN O.S.487/2008. EXT.P6: COPY OF THE ORDER DATED 20/06/2011 IN I.A.4783/2010 IN O.S.487/2008 OF THE MUNSIFF COURT, CHAVAKKAD. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2112 of 2011 -------------------------------------- Dated this the 4th day of July, 2011. JUDGMENT Petitioner is the first defendant in O.S.No.487 of 2008 of the court of learned Munsiff, Chavakkad. That suit is instituted by respondents 1 and 2 for declaration of title over plaint B schedule property and injunction. According to respondents 1 and 2, they got right over plaint B schedule (which allegedly forms part of plaint A schedule) as per Ext.P3, Will executed by their father, Vasu (whose wife is the third respondent/second defendant in the suit). On the death of the father, respondents 1 and 2 sought to enforce their right under the Will. Petitioner resisted the suit disputing the Will and contending that the suit itself is not maintainable as the Will has not come into force. While so respondents 1 and 2 filed I.A.No.4783 of 2010 for issue of an Advocate Commission to measure the property with the assistance of a Surveyor. Learned Munsiff allowed that application by Ext.P6, order which is under challenge. Learned counsel submitted that when the suit itself is not maintainable as the alleged Will based on which respondents 1 and 2 claimed right over the property, if at all genuine, would come into effect only after the death of the third respondent. 2. Contentions raised by petitioner in this proceeding are matters which petitioner could raise (if already pleaded in the written statement) in the trial court. But that need not prevent the trial court from getting the properties OP(C) No.2112/2011 2 measured as directed in Ext.P6 since determination of boundary is necessary in the light of the pleadings of respondents 1 and 2 if ultimately the court decides to grant relief to respondents 1 and 2. On the other hand, measurement done as per order of the court below will not cause any injury to the petitioner. Viewed in that line, there is no reason to interfere with the order under challenge. I make it clear that it is open to the petitioner to raise all his contentions before the trial court. With the above observations this Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks