IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 36307 of 2008(V) -------------------------- OS.437/2005 of MUNSIFF COURT,KAYAMKULAM .................... PETITIONER/5th DEFENDANT: ------------------------------- JOHN MATHAI, S/O.CHACKO MATHAI, AGED 47, KOCHUVEETTIL THEKKETHIL VEETTIL, PERINGALA MURI, KAYAMKULAM VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.JACOB MATHEN, AGED 56 YEARS, S/O.JACOB, RESIDING AT BIJO BHAVAN, KALAPUZHA WARD, ALAPPUZHA - 7. BY ADV. MR.BABU KARUKAPADATH MS.M.A.VAHEEDA BABU MR.JAGAN GEORGE MR.K.A.NOUSHAD RESPONDENT(S): --------------- 1. SULAIMAN KUNJU, S/O.ALIYARKUNJU, THEKKEMANNUKUNNEL VEETTIL, CHERAVALLY MURI, KAYAMKULAM VILLAGE. *2. VENUGOPAL, POTTAKKENETHU VEETTIL, (DELETED) CHERAVALLY MURI,KAYAMKULAM VILLAGE. 3. GOPAKUMAR, POTTAKKENETHU VEETTIL, CHERAVALLY MURI,KAYAMKULAM VILLAGE. 4. JAYALEKSHMI, POTTAKKENETHU VEETTIL, CHERAVALLY MURI,KAYAMKULAM VILLAGE. 5. LEKSHMIDEVI, POTTAKKENETHU VEETTIL, CHERAVALLY MURI,KAYAMKULAM VILLAGE. * R2 DELETED FROM THE PARTY ARRAY AS PER THE ORDER DTD.20.1.2009 IN I.A.NO.926/2009. ADV. MR.S.MOHANAN FOR R1 MR.ABRAHAM K.JOHN FOR R3 & 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36307 of 2008(V) APPENDIX PETITIONER'SEXHIBITS: EXT.P1: PLAINT IN O.S.NO.437/2005 ON THE FILE OF THE MUNSIFF COURT, KAYAMKULAM. EXT.P2: WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT IN O.S.NO.437/2005 ON THE FILE OF THE MUNSIFF COURT, KAYAMKULAM. EXT.P3: WRITTEN STATEMENT FILED BY THE 5TH DEFENDANT IN O.S.NO.437/2005 ON THE FILE OF THE MUNSIFF COURT, KAYAMKULAM. EXT.P4: JUDGMENT DATED 18.1.1996 IN O.S.NO.5/1962 OF THE MUNSIFF COURT, KRISHNAPURAM. EXT.P5: APPLICATION FOR COMMISSION IN I.A.NO.508/2008 IN O.S.NO.437/2005 ON THE FILE OF THE MUNSIFF COURT, KAYAMKULAM. EXT.P6: ORDER DATED 4.7.2008 IN I.A.NO.508/2008 IN O.S.NO.437/2005 OF THE MUNSIFF COURT, KAYAMKULAM. EXT.P7: PLAINT IN OS.NO.437/2005 ON THE FILE OF THE MUNSIFF COURT, KAYAMKULAM. RESPONDENTS' EXHIBITS: EXT.R1(a): SALE DEED IN FAVOUR OF THE PETITIONER DATED 2.1.2006. ........ // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.36307 Of 2008 ---------------------- Dated this the 20th day of October, 2010. J U D G M E N T The 5th defendant in O.S.No.437 of 2005 on the file of the Munsiff Court, Kayamkulam is the petitioner. The writ petition is filed seeking to set aside Ext.P6 order passed by the said court in I.A.No.508 of 2008. The said I.A was filed by one of the plaintiffs to appoint an advocate commissioner to measure the plaint schedule property and to prepare a plan with the help of a surveyor. The petitioner herein opposed the prayer of the plaintiff. It is the case of the petitioner that the right, title and possession of the predecessor of the plaintiffs in the plaint schedule property was the specific issue in O.S.No.5 of 1962 on the file of the Munsiff Court, Krishnapuram and that their claim was negatived by the said court. Therefore the present suit is barred by the principle of res judicata. The said contention would have been taken in to consideration before passing Ext.P6 order. 2. Suit was filed for recovery of possession of plaint schedule property. I.A.No.508 of 2008 was filed for deputing an advocate commissioner to measure the plaint schedule property W.P.(C).No.36307 Of 2008 ::2:: and prepare a plan with the assistance of a surveyor. The question as to whether the plaintiffs have got right, title and interest over the plaint schedule property is a question to be decided after trial. Therefore the objection raised by the petitioner herein against granting the prayer in I.A.508 of 2008 cannot stand. The court below is satisfied that there is sufficient reason to allow the application and it is just and necessary to appoint an advocate commissioner for the matters to be ascertained as requested in the petition. I do not find any reason to interfere with Ext.P6 order passed by the learned Munsiff. Therefore the writ petition is dismissed. HARUN-UL-RASHID, Judge. bkn/-