IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 OP(C).No. 4099 of 2011(O) ---------------------------------- AGAINST THE ORDER IN IA.3195/2011 IN OS.806/1998 of ADDL. MUNSIFF COURT, CHERTHALA .................... PETITIONERS(S): -------------------------- 1. RAVI, S/O. VELUTHA, KOCHUKOTHAMANGALATHU CHIRA, PATTANAKKADU MURI, CHERTHALA. 2. MAHILAMONI, W/O. RAVI, KOCHUKOTHAMANGALATHU CHIRA, PATTANAKKADU MURI, CHERTHALA. BY ADV. SRI.V.L.SHENOY RESPONDENT(S): -------------------------- 1. BAHULEYAN, S/O. KOCHUKANDAN, KARYATHU, PATTANAKKADU, PIN-688 524. 2. RADHAMONI, W/O. BAHULEYAN, KARYATHU, PATTANAKKADU, PIN-688 524. 3. SELVARAJ, S/O. BAHULEYAN, KARYATHU, PATTANAKKADU, PIN-688 524. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV OPCNO.4099/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 9.2.2010 IN FAO 169/2008 ON THE FILE HIGH COURT OF KERALA, ERNAKULAM. EXT.P2: COPY OF THE PETITION IA 3195/2011 IN O.S. 806/1998 ON THE FILE OF MUNSIFF'S COURT, CHERTHALA. EXT.P3: COPY OF THE COUNTER AFFIDAVIT IN I.A. 3195/2011 IN O.S.806/1998 ON THE FILE OF MUNSIFF'S COURT, CHERTHALA. EXT.P4: COPY OF THE ORDER DATED 11.11.2011 IN I.A.3195/2011 IN O.S.806/1998 OF MUNSIFF'S COURT, CHERTHALA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE VPV THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.4099 of 2011 -------------------------------------- Dated this the 14th day of December, 2011. JUDGMENT Petitioners are defendants in O.S.No.806 of 1998 of the court of learned Additional Munsiff, Cherthala. That is a suit for injunction filed by the respondents regarding four items of properties. The suit was disposed of which was challenged in A.S.No.25 of 2003. That appeal was allowed and the suit was remanded for fresh decision. The remand order was challenged in this Court in F.A.O.No.169 of 2008. By Ext.P1, judgment this Court confirmed the remand but directed that fresh adjudication is required for which the existing report and sketch of the Advocate Commissioner are to be remitted and appoint the same Commissioner to identify the properties. Parties were given opportunity to file work memos. In view of that direction, parties filed work memo to identify the properties. Accordingly the Advocate Commissioner after inspection submitted report and plan. Petitioners filed Ext.P2, application to remit that report and plan. That was rejected by Ext.P4, order dated 11.11.2011 which is under challenge. 2. It is contended that the report and plan submitted are of no use for a proper decision in the suit and that unless a proper report and plan are obtained it may affect the right of petitioners in the suit. Reliance is placed on the decision of this Court in Kanaran Nair v. Madhavan Nair (1996 (1) KLT 162). OP(C)No.4099/2011 2 3. It is seen that even after remand of the suit, it was once decreed on petitioners remaining absent and thereafter the decree was set aside. It is thereafter that Ext.P2, application was preferred. Though in the work memo preferred by petitioners there was a request to identify certain properties based on Ext.B8 marked in the trial court, learned Munsiff has observed that based on Ext.B8 no contention is raised in the written statement. Learned Munsiff also observed that Commissioner and Surveyor were not examined in support of Ext.P2, application and there was no reason to remit the report and plan. 4. I must bear in mind that the suit is merely for prohibitory injunction where the court is primarily concerned with the issue of possession. I must also note that the petitioners are not claiming any relief in their written statement except asking for a dismissal of the suit on the grounds they have set up. In that view of the matter I do not find reason to interfere with the impugned order. But I make it clear that this judgment will not stand in the way of petitioners challenging correctness of Ext.P4, order in case an appeal is preferred against the judgment and decree in the suit if petitioners are otherwise entitled to that course. Original Petition is disposed of as above. THOMAS P.JOSEPH, Judge. cks