IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 OP(C).No. 3626 of 2011(O) ------------------------------------- [O.S.NO.164/2011 OF ADDL.MUNSIFF COURT, PALAKKAD] .................... PETITIONER: ------------------- RAFEEQ, AGED 35 YEARS, S/O. LATE KUNHAHAMMED, KATTIL PEEDIKA, KIZHAKKEMURI, KODUNTHIRAPULLY AMSOM DESOM, PIRAYIRI VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 004. BY ADV. SRI.JACOB SEBASTIAN. RESPONDENT: ---------------------- NABEESA UMMA, AGED 75 YEARS, W/O.MEERANKUTTY, D/O. MAKKI ROWTHER, NEELIKKAD, KAVILPPAD AMSOM DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3626/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 : A TRUE COPY OF THE IA NO.2598/2011 IN OS NO.164/2011 OF THE COURT OF THE ADDL.MUNSIFF, PALAKKAD. EXT.P2 : A TRUE COPY OF THE ORDER DTD.20.10.2011 IN IA NO.2598/2011 IN OS NO.164/2011 OF THE COURT OF THE ADDL.MUNSIFF OF PALAKKAD. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3626 of 2011 --------------------------------------- Dated this 15th day of November, 2011 JUDGMENT Respondent is served but, remains absent. 2. Petitioner is the plaintiff in O.S.No.164 of 2011 of the Court of learned Additional Munsiff, Palakkad. That is a suit for injunction filed by petitioner to restrain respondent/defendant from trespassing into the suit property and dispossessing petitioner and his family members. According to the petitioner the suit property is B schedule in the final decree in O.S.No.100 of 1980 of the Sub Court, Palakkad, a charge was created over the said property in favour of the respondent, in O.S.No.164 of 2011 and in execution of the decree in O.S.No.164 of 2011 the said property was sold and purchased by the respondent. Later, respondent executed sale deed No.6051 of 2008 in favour of petitioner, his mother and his siblings. Thus, petitioner claimed to be owner in possession of the suit property. Respondent raised a contention, apart from that petitioner and others has no possession of the property that the suit property is the subject matter of O.S.No.516 of 1994. O.P(C).No.3626 of 2011 -: 2 :- 3. Though, the Advocate Commissioner has submitted a report after inspection of the property, petitioner in view of the contentions raised by the respondent wanted a survey commission to inspect the property and submit report and plan. That application was dismissed by the learned Munsiff as per Ext.P2, order. Thus, Ext.P2, order is under challenge. 4. Learned counsel submitted that though petitioner had produced sale deed No.6051 of 2008 and certificate of possession issued by the Village Officer in the trial court, learned Munsiff has proceeded as if petitioner has not produced the said sale deed and that there is no iota of evidence to show that respondent assigned the property in survey Nos.81/6 and 15. Learned counsel has invited my attention to the copy of sale deed No.6051 of 2008 to contend that it takes in property comprised in R.S.No.81/6 and 15 as well. It is also contended by learned counsel that learned Munsiff has made observations as to the claim of petitioner regarding title over the property which may affect petitioner in the suit and in future. It is argued that in the nature of contentions which respondent has raised including that the property involved is not the B schedule in the final decree in O.S.No.100 of 1980 but is the subject matter of O.S.No.516 of 1994. It is necessary that the property is identified with reference to the relevant documents. O.P(C).No.3626 of 2011 -: 3 :- 5. On going through the order under challenge I find that learned Munsiff has made certain observations which may affect the claim made by petitioner. True, that a suit for injunction is to be decided based on possession claimed by plaintiff. But, atleast for tracing possession, reference can be made to the document of title. In that view of the matter and in view of the case pleaded by the respondent I am inclined to set aside Ext.P2 and remit the application to the learned Munsiff for fresh decision bearing in mind the fact that the suit is of the year 2011 and before going into the trial, necessary pre-trial steps are to be completed. I am inclined to think that learned Munsiff should have a re-look into the mater. Learned counsel submits that petitioner is prepared to seek amendment of plaint to seek an enquiry into title on payment of court fee as provided under law. Resultantly this original petition is allowed. Ext.P2, order is set aside and I.A.No.2598 of 2011 is remitted to the Court of learned Additional Munsiff, Palakkad for fresh decision. If petitioner files any application for amendment of plaint seeking enquiry into title, learned Munsiff shall consider the same also and pass appropriate orders on merit. (THOMAS P. JOSEPH, JUDGE) Sbna/-