IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 32497 of 2009(O) --------------------------------- OS.91/2007 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER: --------------- RAJU J.VAYALAT, AGED 28, S/O.V.T.JOSEPH, VAYALAT HOUSE, FORT KOCHI, ERNAKULAM DT. BY ADVS. MR. A.MOHAMED MUSTAQUE MR. T.PRAVEEN RESPONDENT: --------------- ALIYAR, S/O.VADAKKEKUDY MEERAN, VADAKKEKUDY HOUSE, VALLAM KARA, RAYONPURAM, PIN-684 543, CHELAMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. R BY ADVS.MR.SHAJI CHIRAYATH SMT.JIJI M. VARKEY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS P1: TRUE COPY OF THE SALE DEED NO. 5239/05 OF SRO PERUMBAVOOR DTD. 29.07.2005 P2: TRUE COPY OF THE ORIGINAL SUIT NO. 91/07 FILED BY THE PETIIONER FOR A DECREE OF MANDATORY INJUNCTION AND PROHIBITORY INJUNCTION DTD. 16.03.07 2 wpc no. 32497/2009 P3: TRUE COPY OF THE WIRTTEN STATEMENT FILED BY THE DEFENDANT DT. 23-05-07 P4: THE TRUE COPY OF THE COMMISSION APPLCATION FILED BY THE PETIIONER DT. 14-08-07 P5: THE TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER DT. 20-09-2007 P6: THE TRUE COPY OF THE COMMISSION APPLICATION FILED BY THE REPONDENT DT. 25.09.2007 P7: THE TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER DT. 22-09-07 P8:THE TRUE COPY OF THE APPLICATION FOR AMENDMENT IA NO. 1211/2009 FILED BY THE PETITIONER P9: THE TRUE COPY OF OBJECTION TO IA NO. 1211/2009 FILED BY THE REPONDENT DT. 02-07-09 P 10: THE TRUE COPY OF THE ORDER DT. 22-08-09 IN IA NO.. 1211/2009 IN OS 91/07 RESPONDENTS EXHIBITS : NIL TRUE COPY PA TO JUDGE rkc S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.32497 OF 2009 -------------------------------- Dated this the 18th day of December 2009 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari or such other writ quashing Ext.P10 order as I.A No.1211/2009 in O.S No.91/2007 of Munsiff Court, Perumbavur dated 22/08/2009. ii) Grant such other reliefs as this Hon'ble Court may deem fit and proper as on the facts and circumstances of the case. 2. Petitioner is the plaintiff in O.S No.91 of 2007 on the file of Munsiff Court, Perumbavoor. Suit has been filed seeking a decree of injunction, both prohibitory and mandatory, and the respondent is the defendant. Suit claim was raised over a property having an extent of 6.49 Ares of land comprising a building situate in survey No. 63/2 and 196 of Chelamattom village which, according to the plaintiff, was obtained by him under Ext.P1 sale deed executed by the defendant for a sale consideration of Rs.52,00,000/-. Value was assessed and fixed for the above property specifically stating that the building comprised thereof has a W.P.(C).No.32497 OF 2009 Page numbers value of Rs.34,00,000/- . According to the plaintiff, pursuant to the sale deed, on the request made by the defendant he was permitted to continue occupation over the building for a grace period. Later he refused to vacate the building on demand. Suit was laid under such circumstances for the relief of injunction, both prohibitory and mandatory. Resisting the suit claim, the defendant filed a written statement in which among other contentions the identity of the property claimed by the plaintiff was disputed contending that what was conveyed under Ext.P1 was different from what is claimed by the plaintiff in the suit. Even before casting of the issues on the pleadings raised by the parties, an advocate commissioner had conducted local inspection, measured out the property and prepared a report and plan with the assistance of a surveyor. The report of the commissioner indicated that the building is situate in a different survey number that what is described in Ext.P1 sale deed. Plaintiff thereupon moved an application for amending the plaint to correct the schedule description and also seeking an additional relief for rectification of the W.P.(C).No.32497 OF 2009 Page numbers survey number noted in the sale deed. That application was objected to by the defendant. After hearing both sides, the learned Munsiff dismissed the application vide Ext.P10 order. Propriety and correctness of Ext.P10 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. From the submissions made and facts and circumstances presented with reference to Ext.P10 order challenged in the writ petition, I find, the learned Munsiff has not appreciated the real controversy arising for adjudication in the suit. At this stage when an amendment application was moved by the plaintiff for correcting the description of the property scheduled in the plaint a finding as to whether the description made in Ext.P1 sale deed is correct or not is not expected to, nor can be made without providing an opportunity to the parties to lead evidence in the case. Ext.P10 order passed by the learned Munsiff would indicate that plaintiff is bound by the specification of the survey number of the property given in Ext.P1 sale. So much so, W.P.(C).No.32497 OF 2009 Page numbers even if the survey number is shown to be wrong, that cannot be corrected by filing an amendment application. It is not the survey number that is material, but the title of the property which is involved and covered by Ext.P1 sale deed. It is the case of the plaintiff that the property worth Rs.52,00,000/- comprising a building, the value of which is separately shown as Rs.34,00,000/-, was purchased under Ext.P1 sale deed. The defendant has contended that the building covered by the sale deed was a shed and it is no longer in existence. Advocate commissioner deputed in the case was requested by the defendant to identify the property as described in Ext.P1 sale deed, in particular, with reference to the features evidenced by the removal of the shed which existed in that property. The advocate commissioner has reported that in the property described in Ext.P1 sale deed, there are no remnants or any feature of the removal of any shed or building. Whatever that be, so far as resolving the real controversy involved in the suit property comprising building, the number given by the local authority and specified in Ext.P1 sale deed has utmost W.P.(C).No.32497 OF 2009 Page numbers significance in determining its identification and that can be done only in trial of the suit. It is not the mistake in the survey number in the description of the property covered by a conveyance deed that is to be given significance, but, what is the real property conveyed under the deed. So much so, the merit of the rival case canvassed by the parties as to the identity of the property conveyed under Ext.P1 sale deed can be resolved only in trial with reference to the building mentioned in Ext.P1 sale deed. In that view of the matter, I find, Ext.P10 order passed by the learned Munsiff giving prominence to the survey number shown in Ext.P1 sale deed for determining the identification of the suit property cannot be sustained, and it is liable to be set aside. I do so. Ext.P8 amendment application shall stand allowed. After carrying out of the amendment the court below shall give an opportunity to the defendant to file his answer to the amended plaint. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// vdv P.A TO JUDGE