IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 OP(C).NO. 193 OF 2010(O) ------------------------------------- OS.414/2008 OF I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER: -------------------- ANITHA, AGED 43 YEARS, D/O.SUMANGI, PUTHIYATHURA KANCHANA MAYURAM, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM, BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): -------------------------- RAJENDRAN NAIR,S/O.SREEDHARAN NAIR, RESIDING AT SREEPADMAM, MANAKKAD VILLAGE, THIRUVANANTHAPURAM, THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.193 of 2010 ==================================== Dated this the 07th day of October, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.P10, order passed by the learned Additional Munsiff-I, Neyyattinkara in O.S.No.414 of 2008 on Ext.P9, application. Petitioner filed the suit for a declaration of her title and possession of the suit property and for consequential injunction. Respondent-defendant filed Ext.P3, written statement disputing identity of the suit property. Exhibit P5, report was obtained as regards identity of the suit property. On the request of respondent learned Munsiff passed Ext.P6, order directing Advocate Commissioner to note certain additional points and accordingly the Advocate Commissioner submitted Ext.P7, report. Based on the above, parties went to trial. P.Ws.1 and 2 were examined on 18.03.2010 and the Advocate Commissioner was examined. After the evidence was closed case was posted for hearing on 29.03.2010. It is while so, that respondent filed Ext.P9, application to set aside the report and plan. That application was opposed by petitioner but rejecting his O.P(C) No.193 of 2010 -: 2 :- contentions it was allowed by Ext.P10, order which is under challenge. Learned counsel for petitioner contends that at the fag end of proceeding no such exercise was required to be done by the learned Munsiff and at any rate there was no necessity to set aside Ext.P5, report for which there was not even a prayer in Ext.P9, application. Learned counsel contends that what was requested was to set aside Ext.P7, report. It is also contended by learned counsel that suit property has been identified by the Advocate Commissioner in Ext.P5 which was not disputed by the respondent. 2. To appreciate the contentions raised by petitioner it is necessary to refer to the facts of the case. Petitioner stated in Ext.P1, plaint that properties originally belonged to Krishna Pilla and Bageerathy Amma who executed a Will (marked as Ext.B1 in the trial court). As per that Will plaint B schedule item No.1 in the Will was bequeathed to one Santhakumari Amma. According to the petitioner, plaint schedule property is part of plaint B schedule item No.1. It is the case of petitioner that the said Santhakumari Amma executed settlement deed No.143 of 2005 in favour of Satheeshkumar regarding plaint A schedule item No.1 and settlement deed No.142 of 2005 in favour of one Sreelatha O.P(C) No.193 of 2010 -: 3 :- regarding A schedule item No.2. They sold the said property to the petitioner as per sale deed No.176 of 2005. Thus petitioner got title and possession of plaint A schedule item Nos.1 and 2. So far as item No.3 of plant B schedule is concerned, petitioner claimed that Santhakumari Amma (who got that portion as part of B schedule item No.1 in the Will ) assigned it as per document No.177 of 2006. Respondent contended that the suit property is not B schedule item No.1 of the Will (Ext.B1, marked in the trial court) and that Bageerathy Amma had purchased five cents as per sale deed No.264 of 1969. That five cents is situate towards west of plaint B schedule item No.1 in the Will. Bageerathy Amma died intestate regarding the five cents and thereon that property devolved on her legal representatives, Purushothaman Nair, Santhakumari Amma, Padmavathy Amma and Sukumari Amma. Purushothaman Nair and Padmavathy Amma assigned their right in the said five cents to the respondent as per document No.769 of 2006. It is in the above circumstances that respondent claimed that suit property is not properly identified and that it is not part of plaint B schedule item No.1 of the Will (Ext.B1, marked in the trial court). Respondent stated in Ext.P9, that the Advocate Commissioner has not identified plaint B O.P(C) No.193 of 2010 -: 4 :- schedule item No.1 in the Will. Advocate Commissioner as D.W.1 stated that he identified the suit property as per the assignment deed in favour of petitioner (document No.176 of 2005). He admitted that he had not identified B schedule item No.1 in the Will, nor was that property measured. According to him that property was seen as a separate plot (but without making any measurement of the property based on the relevant document). Exhibit C3 is the report of the Advocate Commissioner marked in the trial court where, plaint B schedule item No.1 in the Will is not seen as a separate plot. Learned Munsiff has observed that going by Ext.C3, version of D.W.1-Advocate Commissioner that he did not venture to identify plaint schedule item No.1 in the Will since it was not seen in a separate plot is not correct. In the Will plaint B schedule item No.1 is 32 cents lying as a triangular plot on the immediate west of the road. In the above circumstances learned Munsiff came to the conclusion that there was no proper identification of B schedule item No.1 of the Will portion of which according to the petitioner, is A schedule item Nos.1 and 2 over which petitioner claimed title and possession as per document No.176 of 2005. In the light of the dispute regarding identity of the property and the contention of respondent that suit O.P(C) No.193 of 2010 -: 5 :- property is not included in plaint B schedule item No.1 it was necessary for Advocate Commissioner to identify plaint B schedule item No.1 as per the Will (Ext.B1, marked in the trial court). It is in the above circumstances that learned Munsiff has passed Ext.P10, order. 3. True, that Ext.P5, report where identification of the property is made stands and there was no prayer to set aside Ext.P5 from the side of respondent. It is also true that there is no specific reference in Ext.P9, application to set aside Ext.P5, report. Instead what is requested for is to set aside the report and plan submitted by the Advocate Commissioner on the allegation that the property is not identified. After all it is the function of the court to settle the dispute in the proper manner and to do whatever is required for that purpose. That neither of the parties objected to the report is no ground for the court to accept it. Court has the power to set aside the report. It is revealed that Ext.P5, report and plan were prepared solely based on document of title (assignment deed) relied on by the petitioner and without reference to plaint B schedule in the Will (Ext.B1) a portion of which according to the petitioner is the suit property . It is in that situation, notwithstanding that respondent had not O.P(C) No.193 of 2010 -: 6 :- specifically requested to set aside Ext.P5 report, learned Munsiff thought that Exts.P5 and P7 are liable to be set aside and properties are to be properly identified with reference to all relevant documents. Having regard to the facts and circumstances and the nature of the controversy between the parties such an exercise was required to identify the suit property and settle the dispute for once and all. The discretion having been exercised by the learned Munsiff in the proper manner after hearing both sides no interference is required under Article 227 of the Constitution. Original Petition is accordingly dismissed. THOMAS P. JOSEPH, JUDGE. vsv