IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 28617 of 2010(O) -------------------------- OS.64/2009 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): --------------- 1. K.V.NARAYANAN, AGED 66 YEARS, S/O.MATHI, RESIDING AT VADAKKUMBAD, P.O.RAMANTHALI, KANNUR DISTRICT. 2. ARUMATI YESODA, AGED 55 YEARS, W/O.K.V.NARAYANAN, RESIDING AT VADAKKUMBAD, P.O.RAMANTHALI, KANNUR DISTRICT. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN RESPONDENT(S): --------------- THIDIL BHASKARAN, AGED 60 YEARS, S/O.KUNHATHI AMMA, RESIDING AT EZHILODE, CHERUTHAZHAM AMSOM, P.O.EZHILODE, KANNUR DISTRICT PIN- 670723. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.28617 of 2010 -------------------------------------- Dated this the 16th day of September, 2010. JUDGMENT Defendants in O.S.No.64 of 2009 of the court of learned Munsiff, Payyannur challenge Ext.P3, order refusing to set aside report and plan submitted by the Advocate Commissioner. Respondent sued petitioners for a decree for prohibitory injunction claiming that he is in possession of the suit property. Petitioners resisted the suit contending that out of 3.10 acres, they assigned three acres to the respondent and the remaining ten cents was in their ownership, possession and enjoyment. On re-survey it was found that petitioners are in possession of a further extent of nine cents as well and thus they are entitled to and in possession of 19 cents. Petitioners contended that they are in possession of property shown by respondent in the plaint schedule. An emergent commission was appointed and he inspected the property on 19.05.2009 ofcourse, without notice to petitioners. The Advocate Commissioner found well defined boundaries for the suit property except on north-eastern side which was seen demolished. Commissioner also reported about attempt to make a new pathway through the suit property on south-eastern side. Advocate Commissioner again inspected the property on 28.01.2010 with the assistance of the Surveyor and the property was measured. Commissioner submitted his report and plan. Again, Advocate Commissioner reported that there are well defined boundaries on all sides of the property except north-eastern WP(C) No.28617/2010 2 portion which was seen demolished. Total extent of the suit property according to the Advocate Commissioner is 2.78 ¾ acres. Advocate Commissioner has shown the suit property as ABCDEFG in the plan and the property claimed by petitioners as EFHI. Not satisfied with that report and plan petitioners filed I.A.No.997 of 2010 to set aside the same. That application was dismissed by the learned Munsiff vide Ext.P3, order. Contention raised before the learned Munsiff was that matters requested by petitioners in their work memo have not been considered by the Advocate Commissioner and that measurement of the property was not in accordance with the boundaries shown in sale deed No.893 of 1984. Learned Munsiff observed that this being a suit for injunction what is required to be decided is the issue regarding possession. Learned Munsiff has referred to the report of the Advocate Commissioner that northern boundary of the suit property is not the actual survey boundary line which is beyond the boundary line shown by the Advocate Commissioner as CDE line. Learned Munsiff observed that report of the Advocate Commissioner is not the final verdict in the matter and it is only an item of evidence. Question whether the plot shown on northern side of ADE line (claimed by petitioners as being in their possession) is part of the suit property is a matter to be decided in evidence. I have been taken through the report and plan submitted by the Advocate Commissioner. The plan shows that the Advocate Commissioner has identified the suit property as ABCDEFG plot the extent of which is 2.78 ¾ acres. The Advocate Commissioner has also shown that survey boundary line on the north WP(C) No.28617/2010 3 is beyond the physical boundary line shown by the Commissioner. Necessarily, it is for the court to decide who is in possession of the property beyond the physical boundary and within the survey boundary line. So far as the claim of petitioners is concerned, their claim is that they are in possession of a portion the suit property (allegedly forming part of the property of respondent). That portion, the Advocate Commissioner has marked separately. I must bear in mind that this is a suit for injunction where the court is concerned with possession of the property claimed by respondent. It is pertinent to note that petitioners have not maid any counter claim. It is in these circumstances that learned Munsiff has found that available materials are sufficient to decide the controversy and that report of Advocate Commissioner did not prevent petitioners from adducing evidence in support of their contention. Writ Petition is without merit and is liable to be dismissed. Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks