IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 OP(C).No. 2603 of 2011(O) ------------------------- OS.293/2010 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONERS ---------------- 1. SASIDHARAN, S/O. VELAYUDHAN, AGED 72 YEARS, RESIDING AT MAGHAM,ERATTAKULAM, ANJUMURTHI, KAVASSERY VILLAGE, ALATHUR TALUK. 2. C.N.BALAN, S/O. NARAYANAN, AGED 61 YEARS, VYSAKH BHAVAN NO.3/620, KARADICHOLA JUNCTION, MALAMPPUZHA VILLAGE, KADUKKAKUNNAM AMSOM DESOM, PALAKKAD TALUK. BY ADV. SRI.A.K.ALEX RESPONDENT(S): --------------- THE MANAGER, UNION BANK OF INDIA, CHANDRA NAGAR, PALAKKAD. BY ADV. SRI. A.S.P KURUP THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2603 of 2011 APPENDIX PETITIONERS EXHIBITS: EXT.P1: TRUE COPY OF DOCUMENT NO.1959/2009 DATED 29.6.2009 EXECUTED IN THE NAME OF 1ST PETITIONER EXT.P2: TRUE COPY OF DOCUMENT NO.149/2004 DATED 14.1.2004 EXECUTED BY ONE ANOOP TO C.N BALAN EXT.P3: TRUE COPY OF THE PLAINT IN O.S 293/2010 OF THE MUNSIFF'S COURT, PALAKKAD. EXT.P4: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT (RESPONDENT) EXT.P5: TRUE COPY OF DOCUMENT NO.148/2004 DATED 14.1.2004 EXECUTED BY SRI. ANOOP IN THE NAME OF SMT. VALSAMMA EXT.P6: TRUE COPY OF THE COMMISSIONER REPORT DATED 3.6.2011 WITH THE SKETCH PREPARED BY THE SURVEYOR. EXT.P7: TRUE COPY OF I.A 1402/2011 FILED BY THE RESPONDENT WITH THE ACCOMPANYING AFFIDAVIT. EXT.P8: TRUE COPY OF THE OBJECTION FILED BY 1ST PETITINER TO I.A 1402/2011 EXT.P9: TRUE COPY OF ORDER PASSED BY THE LEARNED MUNSIFF, PALAKKAD ON 18.7.2011 IN I.A 1402/2011 IN O.S 293/2010. /True copy/ P.A to Judge K.HEMA ,J. ------------------------- O.P (C) No. 2603 of 2011 -------------------------- Dated this the 28th September, 2011 J U D G M E N T This petition is filed to set aside Ext.P9 order. 2. The respondent-Bank filed Ext.P7 petition to set aside the commission report and plan. After hearing both sides, the lower court passed Ext.P9 order. The relevant portion of the said order is as follows: “In the result, the petition is allowed. Ext.C1 commission report and C1 (a) plan are set aside. The commission is directed to measure the property covered by title deed No.148/2004 first by including the dwelling house in the said property. The commission is thereafter directed to demarcate the property on the southern side of dwelling house as well as the eastern side as the property covered by deed No.149/2004. While measurement the extent of 7 cents alone shall be included in the property covered by deed No.148/2004. Residue shall go to deed No. No order for costs. 3. It is submitted by learned counsel for petitioners that it is not possible to measure the property and comply with the order as directed , since there is some ambiguity in the order. According to petitioners, the dwelling house is not situated within the property covered by title deed O.P (C) No. 2603 of 2011 2 No.148/2004 but the court below has ordered that commissioner will measure the property covered by title deed No.148/2004 first “by including dwelling house” . Learned counsel for respondent-Bank submitted that dwelling house is situated in property covered by the above title deed and that for the construction of the house, a loan was availed from the Bank by the wife of the second petitioner herein and the property was also mortgaged. The house was partly constructed. For the purpose of regularisation of loan, the writ petition was also filed by the loanee. But a collusive suit is filed to defeat the rights of the Bank, it is submitted. 4. On hearing both sides and on going through the order under challenge, it appears that there is some ambiguity in the order with respect to the directions issued by the court and a modification is required in the order. However, there is no reason to interfere with order setting aside the commission report and plan especially since petitioners counsel was not able to substantiate that the said order is unsustainable on any ground. In fact he could O.P (C) No. 2603 of 2011 3 not even point out a single sentence or finding in the impugned order which is incorrect, illegal or improper. His grievance appears to be only in respect of the manner in which directions are issued to commissioner to measure the property in paragraph 9 of the order. 5. In the above circumstances, I can only confirm the order setting aside the commission report and plan. However, the directions in the impugned order in paragraph 9 are to be modified. Hence the following order is passed. (1) The order passed setting aside the commission report and plan is confirmed. (2). The directions issued to commissioner are modified to the following extent. (i) The commissioner is directed to measure the property covered by title deed No.148/2004 and also title deed No.149/2004. (ii) The commissioner shall report whether the dwelling house is situated in the property covered by title deed O.P (C) No. 2603 of 2011 4 No.148/2004 or not. (iii) The commissioner shall also demarcate the property covered by both the documents. This original petition is disposed of as above. (Sd/- K.HEMA, JUDGE) ma /True copy/ P.A to Judge O.P (C) No. 2603 of 2011 5