IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 WP(C).No. 4877 of 2008(E) -------------------------------------- AGAINST THE ORDER DATED / / IN OS 1039/2005 IN OS.314/2003 of III ADDL.M.C.EKM (RENT CONTROL) .................... PETITIONER: ---------------- DR.K.P.CLEETUS,S/O. K.M.POULOSE, AGED 52 YEARS,R/AT KONNILLIL HOUSE ELAMKULAM VILLAGE, KANAYANNOOR TALUK KOCHI-13. BY ADV. SRI.TOM JOSE SMT.GEETHA JOB(OZHUKAYIL) SMT.NAJUMA BAI NAZEER SMT.S.SREENI RESPONDENTS: ------------------------ 1. K.P.ANTONY, AGED 75 YEARS S/O. K.M. POULOSE,R/AT KOCHUKADAVANTHARA, NEAR KALLUPALAM, KADAVANTHRA P.O., ELAMKULAM VILLAGE, KANAYANOOR TALUK. 2. K.P.PETER, AGED 65 YEARS, S/O. K.M. POULOSE,R/AT KONNULLIL HOUSE SHANTI NAGAR, THEVARA, ELAMKULAM VILLAGE, KANAYANOOR TALUK. KOCHI-13. 3. K.P.ALEXANDER,AGED 57 YEARS S/O. K.M.POULOSE, R/AT KONNULLIL HOUSE NEAR ST. JOHNS CHURCH PALARIVATTOM P.O., KANAYANNOOR TALUK, KOCHI-13. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- W.P.(C) No.4877 OF 2008 -------------------------- Dated this the 11th day of February, 2008 J U D G M E N T ~~~~~~~~~~~ This writ petition is preferred with a prayer to set aside Ext.P5 order and for consequential reliefs Ext.P5 is a common order passed in O.S.Nos.314/2003 and 1039/2005 by the IIIrd Additional Munsiff's Court, Ernakulam. By the said order the learned Munsiff has set aside Exts.C3 and C4 and directed the same Commissioner and surveyor to conduct the measurement of the properties on the basis of the side measurement shown in Ext.A1 settlement deed. The learned counsel for the writ petitioner submits before me that the commissioner and surveyor has measured the property only in accordance with the measurement shown in the document but has converted it into meters and demarcated the property. It is a matter the correctness of which one has to find out from the entire materials available. It is always desirable that when a property is measured in a particular fashion, the same is resorted to show as it will be easy for the purpose of the court to find out the correctness of the same. Therefore, I do not find any fault with W.P.(C) No.4877/2008 2 the learned Munsiff for directing the commissioner and surveyor to measure the property in accordance with the side measurement shown in plaint A, B & C schedule properties. The present plaintiff is the person who has got the 'D' schedule property which takes in remainder of the total property minus A+B+C. In some cases, there will always be difficulty for the reason that the total extent of the property available on the plot may be lesser than what is shown in the document. In such cases, the courts may have to evolve a system by either apportioning the difference or by fixing the area. Therefore, it is always desirable that the plan and report is prepared by the commissioner in accordance with the measurement in the title deed. Since I am informed that the commissioner and surveyor has done previous measurements also correctly by converting the feet into meters and as their report at an earlier point of time which may have some relevance in the determination of the case, I direct the court below not to set aside those reports and to get an additional report, as the court wanted. I also direct the court below to consider the entire matter after permitting the parties to adduce evidence in support of their respective contentions and dispose of the same in accordance with law. Therefore this W.P.(C) No.4877/2008 3 writ petition is disposed of as follows: i) The direction of the court below to measure the property in accordance with Ext.A1 document is confirmed. ii) The Court below is directed not to set aside Exts.C3 and C4 report, which can be used as the basic document for the purpose of disposal of the case. iii) If any of the parties want to adduce evidence in support or against Exts.C3 and C4, they also may be permitted and it may also be considered along with the new plan and report to be submitted by the Commissioner and dispose it of in accordance with law. (M.N.KRISHNAN, JUDGE) ps