IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 OP(C).No. 1 of 2011(O) ---------------------- IA NO.3151/2010 IN OS.174/2009 of ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONERS/RESPONDENTS ------------------------------------------- 1. RAMANAN, S/O.AYYAPPAN, THURUTHIL NIKARTHIL HOUSE, KODAMTHURUTH MURIYIL, KODAMTHURUTH VILLAGE-688524. 2. BABY, W/O.REMANAN, THURUTHIL NIKARTHIL HOUSE, KODAMTHURUTH MURIYIL,KODAMTHURUTHU VILLAGE-688524. BY ADV. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENT(S): PETITIONER ------------------------- KODAMTHURUTH AGRICULTURAL SOCIETY, REPRESENTED BY ITS PRESIDENT SRI.M.S.BABU, PRESIDENT, SON OF BHASKARAN NAIR, KURINJALIL HOUSE KODAMTHURUTH MURIYIL AND SRI.M.P.MUKUNDAN, SECRETARY, SON OF PADMANABHAN VYDYAR, KURINJALIL HOUSE, KODAMTHURUTH MURIYIL-688524. BY ADV. DR.V.N.SANKARJEE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.1/2011 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE PHOTOSTAT COPY OF THE ORDER IN IS NO.1156/2009 IN OS 174/2009 OF THE ADDL.MUNSIFF COURT, CHERTHALA DATED 31.03.2009 EXT.P2 TRUE PHOTOCOPY OF THE IA NO.3151/2010 IN OS 174/2009 OF TH MUNSIFFCOURT, CHERTHALA EXT.P3 TRUE PHOTOCOPY OF THE OBJECTION FILED BY PETITIONERS HEREIN TO IA NO.3151/2010 EXT.P4 TRUE PHOTOSTAT COPY OF THE ORDER IN IA NO.3151/2010 IN OS NO.174/2009 OF THE MUNSIFF COURT, CHERTALA DATED 23.11.2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1 of 2011 -------------------------------------- Dated this the 27th day of September, 2011. JUDGMENT The defendants in O.S.No.174 of 2009 of the court of learned Additional Munsiff, Cherthala are the petitioners in this proceeding challenging Ext.P4, order dated November 23, 2010 whereby, learned Munsiff allowed I.A.No.3151 of 2010 (Ext.P2) and appointed an Advocate Commissioner to take yield from the coconut trees. The further prayer to auction the right for fish cultivation in the suit property for 2010-2011 was also allowed. 2. Learned counsel for petitioners contends that there is real dispute regarding identity of the suit property and it is without resolving that dispute that the learned Munsiff has passed Ext.P4, order. It is submitted that the Advocate Commissioner appointed by Ext.P4, order has subsequently filed a report stating that the properties are not identifiable. In that view of the matter Ext.P4, order cannot be sustained. Further contention raised is that at any rate, auction of the right for fish cultivation was only for 2010-2011 which has already expired. 3. Learned counsel for respondent has contended that petitioners have filed O.S.No.265 of 2000 for fixation of boundary where the Advocate Commissioner measured the property with the assistance of a Surveyor and OP(C)No.1/2011 2 submitted a report and plan. It is submitted that even the objection preferred by the petitioners to Ext.P2, application would show that the property has been identified in the said suit, though it was ultimately dismissed. 4. Ext.P3 is the copy of objection preferred by petitioners to Ext.P2, application. In paragraph 7 of Ext.P3, there is reference to identification of the property involved O.S.No.265 of 2000. Still the question arises whether property involved in the present suit is the subject matter of O.S.No.265 of 2000. Therefore it is necessary that the suit properties are properly identified, if necessary with reference to the report and plan obtained in O.S.No.265 of 2000 also. 5. So far as the impugned order is concerned, it would appear that to the extent it concerned auctioning of the right to cultivate fish the period granted by Ext.P4, order has been expired. Learned counsel for respondent submits that the respondent will be filing a fresh application in the trial court for auctioning of the right to fish cultivation for the further period. That is a matter left to the respondent. If any such application is filed, trial court shall take decision on the same as provided under law after hearing both sides. So far as the authorisation given to the Advocate Commissioner to take yield from the coconut trees and auction the same is concerned, it remains in force even now. OP(C)No.1/2011 3 6. Having regard to the dispute regarding identity of the suit property, it is necessary to identify the property. Based on the identification of the properties it is open to the learned Munsiff to pass appropriate further orders in the matter of right to take yield from the property as identified, on Ext.P2, application notwithstanding Ext.P4, order. Resultantly this Original Petition is disposed of as follows: i. Respondent shall take necessary steps to identify the suit property, if necessary with reference to the report and plan submitted in O.S.No.265 of 2000 as well, and also taking into account the plea that the petitioners and respondent might take in the matter of identification of the properties as also the documents that they may refer, as the circumstances warranted and as the learned Munsiff decides. ii. Learned Munsiff is directed to pass appropriate further orders as regards the right to take yield from the property consequent to the identification of the property notwithstanding Ext.P4, order. iii. If any fresh application for auctioning the right to cultivate fish in the suit property is filed by the respondent before the Advocate Commissioner submits his report and plan (after identifying the property), learned Munsiff shall OP(C)No.1/2011 4 dispose of that application as provided under law, after hearing the objection of petitioners also, untrammelled by any observation contained in this judgment. THOMAS P.JOSEPH, Judge. cks