IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 OP(C).No. 232 of 2010(O) ------------------------ OS.368/2009 of MUNSIFF COURT, TIRUR .................... PETITIONERS/PLAINTIFFS ---------------------- 1. ABOOBECKER, S/O.MUHAMMED, KIZHUVEETTIL, IRIMBILIYAM, AMSAM DESAM, MALAPPURAM. 2. SALINA, W/O.ABDUL NAZAR, CHARAYANPARAMBIL, MALAPPURAM DISTRICT. 3. SUBAIDA, W/O.KUNJEETHU, CHARAYAN PARAMBIL, KATTIPPARUTHY AMSAM, VALANCHERRY DESAM, MALAPPURAM DISTRICT. BY ADV. SRI.A.KRISHNAN RESPONDENTS/DEFENDANTS ---------------------- 1. ATTANKUTTY, S/O.AIDRU, ARACKAL, IRIMBILIYAM AMSAM, VENDALLOOR DESAM, MALAPPURAM 676 101. 2. MUMMY, D/O.AIDRU, ARACKAL, IRIMBILIYAM AMSAM, VENDALLOOR DESAM, MALAPPURAM 676 101. 3. BEERAN, S/O.AIDRU, ARACKAL, IRIMBILIYAM AMSAM, VENDALLOOR DESAM, MALAPPURAM 676 101. 4. MOIDEENKUTTY, S/O.AIDRU, ARACKAL, IRIMBILIYAM AMSAM, VENDALLOOR DESAM, MALAPPURAM 676 101. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JJJ OP(C).No. 232 of 2010(O) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO: 368 OF 2009 BEFORE THE HONOURABLE MUNSIFF COURT, TIRUR P2: COPY OF THE COMMISSION APPLICATION I.A. NO:3128/09 IN EXT. P1 SUIT P3: COPY OF THE COMMISSION REPORT DATED 07.01.10 P4: COPY OF THE WRITTEN STATEMENT OF DEFENDANTS DATED 01.01.10 P5: COPY OF THE APPLICATION FOR ADJOURNMENT DATED 18.09.10 P6: COPY OF THE SECOND COMMISSIONAPPLICATION DATED 18.09.10 P7: COPY OF THE OBJECTION TO EXT.P5 DATED 22.09.10 P8: COPY OF THE OBJECTION TO EXT.P6 DATED 30.09.10 P9: EXTRACT OF THE ORDER OF THE TRIAL COURT IN EXT.P5 APPLICATION P10: EXTRACT OF THE ORDER OF THE TRIAL COURT IN EXT.P6 APPLICATION RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE JJJ THOMAS P.JOSEPH, J. ==================================== O.P(C) No.232 of 2010 ==================================== Dated this the 10th day of October, 2011 J U D G M E N T As ordered by this Court on 10.03.2011 petitioners served notice on counsel appearing for respondents in the court below and filed a memo to that effect. Hence service of notice on respondents is sufficient. 2. Petitioners are plaintiffs in O.S. No.368 of 2009 of the court of learned Munsiff, Tirur. That is a suit for declaration of title and injunction. According to the petitioners, the suit property formed part of a larger extent of 10.01 acres which originally belonged to one Aidru, father of respondents as per a sale deed of the year 1971. There were subsequent assignment of part of the said property and ultimately first petitioner purchased the said property from one Moideenkutty, an assignee as per document No.1293. Later, first petitioner is said to have sold 10 cents each to petitioners 2 and 3 in the year, 2009 as per documents No.5007 and 5006, respectively. Petitioners filed Ext.P2, application for appointment of an Advocate Commissioner for local inspection. Advocate Commissioner filed report but without O.P(C) No.232 of 2010 -: 2 :- measuring the property. Respondents filed Ext.P4, written statement denying the claim of the petitioners. According to the respondents, if property over which petitioners claim title is part of the property scheduled in the written statement, petitioners have no right or interest in that property. 3. In the light of the above contention of respondents, petitioners filed Ext.P6, application to remit Ext.P3, report to the Advocate Commissioner to measure the suit property with the help of a Surveyor. That application was objected by Ext.P8. Learned Munsiff dismissed Ext.P6, application by Ext.P10, order observing that application is filed when the suit is listed for trial and no reason is stated for not taking steps on time. Learned Munsiff also observed that there is already a report and plan of the Commissioner and there is no need to call for a further report. 4. Learned counsel for petitioners submitted that there is dispute regarding title and as declaration is prayed for, a properly measured plan with reference to the relevant documents is necessary. It is also submitted that Ext.P3, report is without measurement of the property and that the plan referred to by the learned Munsiff in the impugned order is only a rough sketch. Learned counsel has invited my attention to the report O.P(C) No.232 of 2010 -: 3 :- and sketch. 5. The sketch appears to be a rough sketch without measurement of the property. There could be no doubt that when title is sought to be declared, and there is dispute regarding identity of property, a properly measured plan with reference to the relevant documents is necessary. It is true that Ext.P6, application is filed after the case was listed for trial. That by itself is not sufficient to disallow Ext.P6, application. I am inclined to think that a survey commission is necessary for a proper adjudication of the dispute involved. Whether Ext.P6, application must be taken as a fresh application for a survey commission or Ext.P3, report is to be remitted as prayed for is a matter which the learned Munsiff has to decide. In the light of what I have stated above, order dated 01.10.2011 on Ext.P6 (I.A. No.2286 of 2010) cannot stand and is liable to be set aside. Resultantly, Original Petition is allowed. Order dated 1.10.2011 on I.A. No.2286 of 2010 in O.S No.368 of 2009 of the court of learned Munsiff, Tirur is set aside and that application is remitted to the learned Munsiff for fresh decision having regard to the nature of the dispute raised by the respondents and the observations I have made above. It is open to the learned Munsiff O.P(C) No.232 of 2010 -: 4 :- to treat Ext.P6, application either as one for appointment of a survey commission or to remit Ext.P3, report so that the properties could be measured with reference to the relevant documents as may be decided by the learned Munsiff. I make it clear that if respondents wish to get any matter identified by the Advocate Commissioner, it will be open to them to file work memo before the learned Munsiff and it is for the learned Munsiff to decide what all matters raised either by petitioners or respondents are to be ascertained having regard to the dispute involved which learned Munsiff is required to adjudicate. In case any work memo is filed and allowed, learned Munsiff shall apportion the liability for payment of commission batta among the parties. THOMAS P. JOSEPH, JUDGE. vsv