IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 OP(C).No. 3056 of 2011(O) ------------------------- AGAINST THE ORDER IN IA.892/2011 IN OS.170/2008 of MUNSIFF COURT, PARAPPANANGADI .................... PETITIONER: -------------------- PUTTEKKADAN ABOOBACKER,S/O.KUNHEEN HAJI, PARAMBILPEEDIKA POST,PERUVALLUR,TIRURANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER SRI.SUMODH MADHAVAN NAIR RESPONDENTS: --------------- 1. KOLAR VEETTIL SUKUMAR,S/O.UNNIPPANHU, PARAMBILPEEDIKA POST 676 315. PERUVALLUR,KERNALLUR,TIRURANGADI, MALAPPURAM DISTRICT . 2. KOLAR VEETIL UNNIPPANHU, S/O.THEYYAUTTY,PARAMBILPEEDIKA POST 676 315, PERUVALLUR,KERNALLUR,TIRURANGADI, MALAPPURAM DISTRICT . 3. SAJAYKUMAR, S/O.UNNIPPANHU, PARAMBILPEEDIKA POST 676 315, PERUVALLUR,KERNALLUR,TIRURANGADI, MALAPPURAM DISTRICT . ADV. SRI.C.M.MOHAMMED IQUABAL THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3056 of 2011 2 APPENDIX EXHIBIT P1 : TRUE COPY OF THE PLAINT IN OS NO.170/2008 ON THE FILE OF THE MUNSIFF'S COURT,PARAPPANANGADI DATED 7/7/2008. EXHIBIT P2 : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS DATED 15/11/2008 IN OS 170/2008 ON THE FILE OF THE MUNSIFF'S COURT ,PARAPPANANGADI. EXHIBIT P3 : TRUE COPY OF THE AFFIDAVIT DATED 20/2/2010 IN SUPORT OF IA.NO.572/2010 IN OS NO.170/2008 BEFORE THE MUNSIFF'S COURT,PARAPPANANGADI. EXHIBIT P4 : TRUE COPY OF REPORT DATED 14/2/2011 SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA NO.572/2010 IN OS NO.170/2008 ON THE FILE OF THE MUNSIFF'S COURT,PARAPPANANGADI. EXHIBIT P4(A) : TRUE COPY OF PLAN DATED 14/2/2011 SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA NO.572/2010 IN OS NO.170/2008 ON THE FILE OF THE MUNSIFF'S COURT,PARAPPANANGADI. EXHIBIT P4(B) : TRUE COPY OF PLAN DATED 14/2/2011 SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA NO.572/2010 IN OS NO.170/2008 ON THE FILE OF THE MUNSIFF'S COURT,PARAPPANANGADI. EXHIBIT P4(C) : TRUE COPY OF PLAN DATED 14/2/2011 SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA NO.572/2010 IN OS NO.170/2008 ON THE FILE OF THE MUNSIFF'S COURT,PARAPPANANGADI. EXHIBIT P5 : TRUE COPY OF AFFIDAVIT DATED 31/5/2011 IN IA NO.892/2011 ON OS NO.170/2008 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXHIBIT P6 : TRUE COPY OF AFFIDAVIT DATED 31/5/2011 IN IA NO.893/2011 ON THE FILE OF THE MUNSIFF'S COURT,PARAPPANANGADI. EXHIBIT P7 : TRUE COPY OF OBJECTION DATED 18/7/2011 FILED BY THE RESPONDENT TO EXT.P5. EXHIBIT P8 : TRUE COPY OF THE COMMON ORDER DATED 2/8/2011 IN IA NOS.892/2011 AND 893/2011 PASSED BY MUNSIFF'S COURT , PARAPPANANAGADI. EXHIBIT P9 : TRUE COPY OF LETTER DATED 2/6/2010 FROM THE PETITIONER TO THE INFORMATION OFFICE, SURVEY AND LAND RECORDS UNDER RIGHT TO INFORMATION ACT. EXHIBIT P9(A) : TRUE COPY OF REPLY DATED 30/6/2010 ISSUED BY INFORMATION OFFICER,SURVEY SUPERINTENDENT TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3056 of 2011 --------------------------------------- Dated this 02nd day of November, 2011 JUDGMENT Ext.P8, order passed by the learned Munsiff, Parappanagadi on I.A.No.892 of 2011 and 893 of 2011 refuses to remit the report and plan for further inspection with the assistance of a Surveyor is under challenge in this original petition. Petitioner filed O.S.No.170 of 2008 representing the public under Order I Rule 8 of the Code of Civil Procedure and sought a decree for prohibitory injunction against respondents trespassing into the public road described in the plaint schedule, for a direction to the respondents to demolish the foundation constructed by them allegedly encroaching into the said public road and to restore the public road into its original position. In the plaint, public road is described as having length of 75 meters and width of 9 to 12 feet. Respondents filed Ext.P2, written statement denying the allegations regarding trespass and existence of the public road. On the request of the petitioner, Advocate Commissioner submitted Exts.P4(a) to (c), plans pursuant to Ext.P3, order. Since the report and plans were not satisfactory to the petitioner, he filed Ext.P5, application to remit the report and plans and O.P(C).No.3056 of 2011 -: 2 :- Ext.P6, application to direct the Taluk Surveyor to assist the Advocate Commissioner. Those applications were objected by the respondents and learned Munsiff by Ext.P8, order dismissed the same. 2. Learned counsel for petitioner has contended that Ext.P9(a) dated 30.06.2010 obtained from the office of the Superintendent, Resurvey, Tirur was in existence since long and hence there can no more a contention that no such road exists. It is also contended by learned counsel that since respondents did not produce their documents of title, their properties could not be measured with reference to the said documents. The further argument which learned counsel advanced is that in Exts.P4(a) to (c), plans though the disputed road is shown, Commissioner and Surveyor have not given its measurements. Petitioner has a further grievance that though in Ext.P4(c) the structure constructed by the respondents is shown as trespassing into the road, the extent of trespass is not given in measurement either in the report or plan. In the above circumstance, Exts.P4(a) to (c), are not of any use and are required to be remitted, it is argued. 3. Learned counsel for respondents submitted that even Ext.P9(a) would show that resurvey has not become final and O.P(C).No.3056 of 2011 -: 3 :- hence remission of the report and plans based on the resurvey is not possible. It is submitted by learned counsel that the Advocate Commissioner has reported in Ext.P4 that the disputed road is not in existence and hence the necessity to ascertain measurement of disputed road does not arise. 4. It would appear from Ext.P4, report that respondents were not able to point out the boundary of the property over which they claimed title. Nor did they produce their documents of title so that properties could have been measured based on those documents. It is seen from Exts.P4(a) to (c), plans prepared by the Advocate Commissioner and the Surveyor that though the disputed road is shown in the plans, it does not give its measurements, length or width. It is also seen that in Ext.P4 (c), portion of the structure situated in the property allegedly belonging to the respondents is shown as trespassing into the disputed way but the extent of trespass by measurement is not given either in the report or plans. 5. The above aspects were not considered by the learned Munsiff. Respondents ought to have produced their documents of title in the court below to facilitate a proper measurement of the properties and for a settlement of the dispute for ever, rather O.P(C).No.3056 of 2011 -: 4 :- than claiming that the suit is filed by the petitioner and it is their responsibility to produce the relevant documents. Respondents shall either produce their documents of title in the court below or if for any reason they are not in possession of the same, file affidavit in the court below giving details of the documents of title so that it is open to the petitioner to obtain its certified copy. Learned Munsiff shall decide Exts.P5 and P6, applications afresh having regard to the above aspects of the matter and bearing in mind whether remission of the report and plans and fresh measurement is required with reference to the documents of title of respondents and, if at all the resurvey plan cannot be made use of, with reference to the old survey records. 6. In the light of the what I have stated above Ext.P8, order cannot be sustained and it is liable to be set aside and I do so. Resultantly this original petition is allowed. Ext.P8, order is set aside and Exts.P5 and P6, applications are remitted to the learned Munsiff for fresh decision in the light of the observations I have made above. I make it clear that I have not expressed any opinion on the merit of the contentions parties have raised. Learned Munsiff before posting the case for trial in the list shall O.P(C).No.3056 of 2011 -: 5 :- dispose of Exts.P5 and P6, applications after giving parties sufficient time to produce the document/affidavit referred to above. Learned Munsiff, bearing in mind the direction contained in the judgment in W.P(C).No.13351 of 2009 shall expedite the proceedings. (THOMAS P. JOSEPH, JUDGE) Sbna/-