IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 OP(C).No. 824 of 2011(O) AGAINST THE ORDERS IN IA.NO. 3139/2010 AND IA 340/2011 IN OS.381/2009 OF MUNSIFF'S COURT, THALASSERY PETITIONERS ------------------------ 1. MALLATTI KOKKAMBETH KUNHAMIA, W/O.KUNHAHAMMED,'AMINA MANZIL',CHEMBILODE AMSOM, KOYYODE DESOM,KOVVAL,P.O,KOYYODE,KANNUR DISTRICT. 2. MALLATTI KOKKAMBETH NAZEER,S/O.KUNHAMINA 'AMINA MANZIL,CHEMBILODE AMSOM,KOYYODE DESOM, KOVVAL,P.O.KOYYODE,KANNUR DISTRICT. 3. MALLATTI KOKKAMBETH SAIBUNNISA, D/O.KUNHAMINA,'AMINA MANZIL',CHEMBILODE AMSOM, KOYYODE DESOM,KOVVAL.P.O,KOYYODE,KANNUR DISTRICT. 4. MALLATTI KOKKAMBETH SOUDATH, D/O.KUNHAMINA,'AMINA MANZIL',CHEMBILODE AMSOM, KOYYODE DESOM,KOVVAL.P.O,KOYYODE,KANNUR DISTRICT. 5. MALLATTI KOKKAMBETH HASEENA, D/O.KUNHAMINA,'AMINA MANZIL',CHEMBILODE AMSOM, KOYYODE DESOM,KOVVAL.P.O,KOYYODE,KANNUR DISTRICT. 6. MALLATTI KOKKAMBETH SEENATH, D/O.KUNHAMINA,'AMINA MANZIL',CHEMBILODE AMSOM, KOYYODE DESOM,KOVVAL.P.O,KOYYODE,KANNUR DISTRICT. 7. MALLATTI KOKKAMBETH ASHRAF, S/O.KUNHAMINA,'AMINA MANZIL',CHEMBILODE AMSOM, KOYYODE DESOM,KOVVAL.P.O,KOYYODE,KANNUR DISTRICT. 8. MALLATTI KOKKAMBETH SHAREEFA, D/O.KUNHAMINA,'AMINA MANZIL',CHEMBILODE AMSOM, KOYYODE DESOM,KOVVAL,P.O.KOYYODE,KANNUR DISTRICT. 9. MALLATTI KOKKAMBETH AYISHA, D/O.KUNHAMINA,'AMINA MANZIL',CHEMBILODE AMSOM, KOYYODE DESOM,KOVVAL,P.O.KOYYODE,KANNUR DISTRICT. BY ADV. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA SRI.GOPAKUMAR G. (ALUVA) RESPONDENTS: --------------- 1. ELEMBILATT PARAMMAL MARIYUMMA, D/O.KHADEEJA,'MUBARAK MANZIL,',CHEMBILODE AMSOM, KOYYODE DESOM,P.O.KOYYODE,VIA.KADACHIRA, KANNUR DISTRICT-670621. 2. V.V.SACARIYA ,S/O.MUHAMMED,MUBARAK MANZIL, CHEMBILODE AMSOM,KOYYODE DESOM,P.O.KOYYODE, VIA KADACHIRA,KANNUR-670621. 3. V.V.NADIRA,D/O.MUHAMMED,'MUBARAK MANZIL' CHEMBILODE AMSOM,KOYYODE DESOM,P.O.KOYYODE,. VIA KADACHIRA,KANNUR-670621. 4. V.V.MUNEER,S/O.MUHAMMED,'MUBARAK MANZIL' CHEMBILODE AMSOM,KOYYODE DESOM,P.O.KOYYODE,. VIA KADACHIRA,KANNUR-670621. 5. V.V.JALEEL,S/O.MUHAMMED,'MUBARAK MANZIL' CHEMBILODE AMSOM,KOYYODE DESOM,P.O.KOYYODE,. VIA KADACHIRA,KANNUR-670621. 6. V.V.FARIDA,D/O.MUHAMMED,'MUBARAK MANZIL' CHEMBILODE AMSOM,KOYYODE DESOM,P.O,KOYYODE, VIA KADACHIRA,KANNUR-670621. 7. V.V.SHAFEEDA,D/O.MUHAMMED,'MUBARAK MANZIL',CHEMBILODE AMSOM,KOYYODE DESOM, P.O.KOYYODE,VIA.KADACHIRA,KANNUR-670621. R1,3,5-7 BYADV. SRI.V.RAMKUMAR NAMBIAR SRI.C.X.ANTONY BENEDICT THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.381/2009 ON THE FILE OF THE MUNSIFF'S COURT, THALASSERY. EXT.P2 TRUE COPY OF THE STATEMENT IN O.S.NO.381/2009 ON THE FILE OF THE MUNSIFF'S COURT, THALASSERY. EXT.P3 TRUE COPY OF THE PETITION DATED 19.11.2010. EXT.P4 TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER. EXT.P5 TRUE COPY OF THE ORDER DATED 15.12.2010 IN I.A.NO.3139 OF 2010. EXT.P6 TRUE COPY OF I.A.NO.340 OF 2011. EXT.P7 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS. EXT.P8 TRUE COPY OF THE EXTRACT OF THE ORDER DATED 15.2.2011 IN I.A.NO.340/2011. EXT.P9 TRUE COPY OF THE TITLE DEED OF THE PETITIONERS. EXT.P9(a) TRUE COPY OF THE TITLE DEED OF THE PETITIONERS. EXT.P10 TRUE COPY OF THE PARTITION DEED NO.2708/2007. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 824 OF 2011 O ------------------------------------------------------ Dated this the 31st day of May, 2011 JUDGMENT The defendants in O.S.No.381 of 2009 on the file of the Court of the Munsiff of Thalassery, challenge Ext.P5 order dated 15.12.2010 in I.A.No.3139 of 2010 and Ext.P8 order dated 15.2.2011 in I.A.No.340 of 2011. 2. The suit was filed by the respondents for fixation of the southern boundary of the plaint schedule property. The property of the defendants is situated on the southern side of the plaintiffs' property. It is stated that a portion of the property on the eastern side was acquired for Pazhassi Project. An Advocate Commissioner was appointed to measure the properties and to submit a plan and report. The Commissioner inspected the property with the assistance of the Village Assistant and submitted plan and report. Defendants 1, 2 and 4 to 10 filed I.A.No.3139 of 2010 for a direction to the Advocate Commissioner to measure and identify the properties of the plaintiffs and defendants with the assistance of O.P.(C) NO.824 OF 2011 O :: 2 :: Taluk Surveyor. It is stated that no counter was filed and that the plaintiffs never objected to the prayer. However, the court below by Ext.P5 order dismissed the application. 3. Thereafter, on the allegation that the defendants removed the peg marks fixed by the Commissioner in the property, the plaintiffs filed I.A.No.340 of 2011 to appoint a Commissioner to inspect the property. The plaintiffs also alleged that the defendants stacked laterite stones in the property in dispute. The court below, by Ext.P8 order dated 15.2.2011, allowed the application and the Commissioner was directed to inspect the property with the assistance of a private surveyor. 4. Sri.Ramkumar Nambiar, learned counsel appearing for the plaintiffs submitted that pursuant to the order in I.A.No.340 of 2011, the Commissioner inspected the property but report was not filed in view of the stay granted in this Original Petition. He also submitted that the plaintiffs had no objection if the property is inspected by the Commissioner with the assistance of the Taluk Surveyor. 5. In order to avoid a possible contention that the property O.P.(C) NO.824 OF 2011 O :: 3 :: was not properly measured and identity fixed since the Taluk Surveyor was not appointed, I think the Commissioner can be directed to inspect the property with the assistance of the Taluk Surveyor. Both the parties are of the same view that it would be ideal if the Taluk Surveyor assists the Commissioner. In the facts and circumstances of the case, the Original Petition is disposed of directing the Commissioner to inspect the property with the assistance of the Taluk Surveyor. The Commissioner shall identify the plaint schedule property and the defendants' property in accordance with their respective title deeds. Ext.P5 order in I.A.No.3139 of 2010 and Ext.P8 order in I.A.No.340 of 2011 shall stand modified to the above extent. The court below shall issue directions to the Commissioner and the Taluk Surveyor to make the inspection and to file report without delay. (K.T.SANKARAN) Judge ahz/