IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 OP(C).NO. 2818 OF 2011() ------------------------------------- OS.301/2008 OF MUNSIFF COURT, THALASSERY PETITIONER: -------------------- KIZHAKKE PARAPURATH ASHOKAN THROUGH POWER OF ATTORNEY HOLDER, VISHWANATHAN KAKKOTH HARI, 'HARI', CHALA EAST, KANNUR TALUK, KANNUR DISTRICT. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): ------------------------ 1. POOVEN JAYASREE, D/O.KRISHNAN, THEROTH HOUSE, NEAR THEROTH MUTHAPPAN TEMPLE, P.O.KAKKAD, KANNUR - 670 005. 2. POOVEN VALSAN, S/O.KRISHNAN, THEROTH HOUSE, NEAR THEROTH MUTHAPPAN TEMPLE, P.O.KAKKAD, KANNUR - 670 005. 3. POOVEN JAYAN, S/O.KRISHNAN, THEROTH HOUSE, NEAR THEROTH MUTHAPPAN TEMPLE, P.O.KAKKAD, KANNUR - 670 005. 4. POOVEN PRABHA, D/O.LAKSHMI, VALIYA VALAPP, ATTADAPPA, NEAR SHASHTRI MUKKU LAKSHAM VEEDU COLONY, ATTADAPPA P.O., KANNUR - 6. 5. POOVEN VASANTHA, D/O.LAKSHMI, VALIYA VALAPP, ATTADAPPA, NEAR SHASHTRI MUKKU LAKSHAM VEEDU COLONY, ATTADAPPA P.O., KANNUR - 6. 6. POOVEN PRADEEPAN, VALIYA VALAPP, ATTADAPPA, NEAR SHASHTRI MUKKU LAKSHAM VEEDU COLONY, ATTADAPPA P.O., KANNUR - 6. 7. POOVEN MANOJ, S/O.LAKSHMI, VALIYA VALAPP, ATTADAPPA, NEAR SHASHTRI MUKKU LAKSHAM VEEDU COLONY, ATTADAPPA P.O., KANNUR - 6. 8. POOVEN LEELA GOPALAN, VALIYA VALAPP, ATTADAPPA, NEAR SHASHTRI MUKKU LAKSHAM VEEDU COLONY, ATTADAPPA P.O., KANNUR - 6. 9. CHATHOTH MADUSOODANAN, S/O.LAKSHMANAN, CHATHOTH HOUSE, SPINNING MILL ROAD, P.O.KAKKAD, KANNUR - 670 005. 10. POTHODY SHOBHANA, D/O.KUNHIRAMAN, VALIYA VALAPPA ATTADAPPA, NEAR SHASHTHRI MUKKU LAKSHAM VEEDU COLONY, P.O.ATTADAPPA, KANNUR - 6. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2818 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.301 OF 2008 BEFORE THE MUNSIFF'S COURT, THALASSERY. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.301 OF 2008 BEFORE THE MUNSIFF'S COURT, THALASSERY. EXHIBIT P3 TRUE COPY OF THE PLAN AND REPORT PREPARED BY THE ADVOCATE COMMISSIONER IN O.S. NO.301 OF 2008 BEFORE THE MUNSIFF'S COURT, THALASSERY. EXHIBIT P4 TRUE COPY OF I.A. NO.1794 OF 2010 FILED BY THE PETITIONER IN O.S. NO.301 OF 2008 BEFORE THE MUNSIFF'S COURT, THALASSERY. EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 5O 9 IN O.S. NO.301 OF 2008 BEFORE THE MUNSIFF'S COURT, THALASSERY. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 15.12.2010 IN I.A. NO.1794 OF 2010 IN O.S. NO.301 OF 2008 BEFORE THE MUNSIFF'S COURT, THALASSERY. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2818 of 2011 ==================================== Dated this the 01st day of September, 2011 J U D G M E N T Petitioner is the plaintiff in O.S. No.301 of 2008 of the court of learned Munsiff, Thalassery. That is a suit for fixation of boundary of the suit property described as 27 cents in two taks. It is said that respondents-defendants 1 to 9 own property adjacent to the suit property. The Advocate Commissioner submitted Ext.P3, report and plan. That was followed by petitioner filing I.A. No.1794 of 2010 to remit the report and plan with a direction to measure the property of respondents. That request was rejected by the learned Munsiff as per Ext.P6, order dated December 15, 2010. On August 05, 2011 petitioner has filed this Original Petition challenging Ext.P6, order. 2. Learned counsel contends that properties are to be measured with the aid of Filed Measurement Book (for short, “the FMB”) and that to correctly fix boundary of the suit property it is necessary to measure properties of the respondents also. It is also the grievance of petitioner that even as per Ext.P3, report O.P(C) No.2818 of 2011 -: 2 :- Advocate Commissioner was not able to measure the north- eastern side of the second tak of plaint A schedule property due to dispute raised by the defendants. 3. I have gone through Ext.P3, report and plan. In the report, the Advocate Commissioner has stated that the schedule properties are comprised in R.S. No.57/4, that the said property is lying in two taks and that the same was identified with the aid of the FMB and as shown by the parties. However the Commissioner could not see survey stones on the boundary of the property. In the FMB total extent of the property comprised in R.S. No.57/4 is given as 1.47 acres. As per the document of petitioner, his entitlement is for 27 cents in the said resurvey lying in two taks. The Commissioner has shown the property of petitioner as per his document in red line in the plan appended to Ext.P3, report. The Commissioner has reported that there are clear boundaries on the east and south of tak No.1. But there are no identifiable boundary on the north of tak No.1. 4. Now the grievance of petitioner is that Commissioner has referred to a small portion not coming within the document of O.P(C) No.2818 of 2011 -: 3 :- petitioner towards east of tak No.2 and that it is reported in Ext.P3 itself that Commissioner has not measured the north-eastern side of tak No.2 due to dispute raised by the defendants. 5. So far as the small strip of land in between taks 1 and 2 is concerned that is of no consequence since that is in between tak Nos.1 and 2 over which petitioner claimed title and possession which petitioner has to prove. The Commissioner has shown ABCEDF as tak No.1 measuring 14.13 cents and (identified as per document of petitioner) and tak No.2 as GHIDG - 11.14 cents. The strip of land shown as DEID is the portion in between the said two taks which measures 0.48 cents. Thus the total extent came to 25.75 cents. The total extent of property in the possession of petitioner is stated as 26.91 cents. 6. Next dispute concerns the north-eastern boundary of tak No.2. Advocate Commissioner has stated that on account of dispute between raised by the defendants, that was not measured. The Commissioner has marked that portion as 'IM' line in the plan with other measurements. O.P(C) No.2818 of 2011 -: 4 :- 7. Every inadequacy, if any, in the report is not required to be interfered in a proceeding under Article 227of the Constitution. I must also bear in mind that neither the Advocate Commissioner nor the Surveyor was examined in the trial court. It is open to the petitioner to point out the deficiency if any in the report in the course of trial and if necessary challenge correctness of the report and plan in the appeal as well. Original Petition is dismissed with the above observations. THOMAS P. JOSEPH, JUDGE. vsv