IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 OP(C).No. 2007 of 2011(O) --------------------------------------- OS.NO. 249/2010 of PRINCIPAL MUNSIFF COURT, KANNUR .................... PETITIONER -------------------- P.M.RADHA, D/O.P.M.PARVATHI AMMA, RESIDING AT PARVATHI MANDIR CHERUKUNNU.P.O., KANNUR-670 301. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------------------- P.M.VINOD, S/O.P.M.LOLAKSHI AMMA, RESIDING AT "PRASEETHA", P.O.CHERUKUNNU, KANNUR-670 301. BY ADV. SRI.K.P.SREEKUMAR SRI.P.M.SATHEESH SRI.R.P.REMESAN SRI.C.KRISHNAN(KANNUR) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2007/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.249/2010 P2 COPY OF THE APPLICATION FOR ISSUANCE OF A COMMISSION. P3 COPY OF THE COMMISSIONER'S REPORT TOGETHER WITH PLAN. P4 COPY OF THE SECOND COMMISSIONER'S REPORT DATED 1/11/2010. P5 COPY OF THE WORK MEMO P6 COPY OF THE PETITION TO REMIT THE COMMISSIONER'S REPORT. P7 COPY OF THE REPORT DATED 20/11/2010 TOGETHER WITH PLAN P8 COPY OF THE OBJECTION DATED 22/11/2010 P9 COPY OF THE ORDER DATED 4/4/2011 IN I.A.NO.718/2011 IN O.S.NO.249/2010. RESPONDENT'S EXHIBITS: R1 COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN O.S.NO.249/2010 DATED 10/6/2010 BEFORE THE MUNSIFF COURT, KANNUR(PRL) R2 COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT TO THE PETITION TO REMIT THE REPORT OF THE COMMISSIONER DATED 18/2/2011. /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2007 of 2011 --------------------------------------- Dated this 29th day of July, 2011 JUDGMENT Plaintiff in O.S.No.249 of 2010 of the Court of learned Munsiff, Kannur is aggrieved by Ext.P9, order dated April 04, 2011 on I.A.No.718 of 2011 as much as learned Munsiff refused to remit report and plan submitted by the Advocate Commissioner and directed that the deficiency or defect if any in the report and plan could be gone through in the course of further trial. 2. The matter emerges from a suit filed by the petitioner for recovery of possession of plaint B schedule which according to the plaintiff is part of plaint A schedule – 12.5/8 cents and for decree for prohibitory and mandatory injunction with respect to the remaining part of plaint A schedule. According to the petitioner, she got title and possession of plaint A schedule from a sharer who got it as per the final decree in O.S.No.372 of 1994 of the Sub Court, Thalassery. Petitioner alleged that respondent/defendant who has property towards western side of the suit property trespassed into a portion of plaint A schedule (said to be plaint B schedule) and has constructed a building. O.P(C).No.2007 of 2011 -: 2 :- Respondent contended that the allegations are not true. 3. It is seen from the records produced before me that the Advocate Commissioner visited the property several times with and without the assistance of Surveyor and submitted reports and plans. For some reason or other the matter was being remitted to the Advocate Commissioner for further report and plan. At one point of time learned Munsiff suo moto directed the Advocate Commissioner to make a further inspection and measure the property with the assistance of Surveyor. The last report and plan is Exts.P7 following that petitioner preferred Ext.P8, objection and I.A.718 of 2011 for remission. In that application, it was contended that the property of respondent was not measured with reference to her original title deed and further that the Surveyor and Advocate Commissioner has not taken into account the fact that predecessor-in-interest of respondent got title over the property on the western side in the year 1984, after about 10years a road was constructed towards the western side of the property of respondent making use of a portion of the property of respondent and respondent got title over the property only in the year 2010. In spite of all that, respondent was found to be in possession of excess land. These aspects were not taken O.P(C).No.2007 of 2011 -: 3 :- into account by the Surveyor and Advocate Commissioner, it was contended. 4. The application was opposed by the respondent contending that whatever that is required to be identified for the suit has been done by the Advocate Commissioner and Surveyor and hence a further remission of the report is not required. 5. Learned counsel for petitioner has contended that Ext.P9, order does violence to the provisions of Order XXVI, Rule 10(2) of the Code of Civil Procedure in so much as the enquiry regarding correctness of the report should have been conducted before the case was posted for trial in the list. It is also contended that if the enquiry regarding correctness of the report and plain is embarked upon in the course of trial, parties will be embarrassed in that, objection raised by the parties if found correct, the process of remitting the report and plan has to be repeated and further objection for such report and plan be invited. In the situation, it was appropriate that learned Munsiff considered the objection and remitted the report and plan in the way suggested by the petitioner. 6. Learned counsel for respondent has contended that this being a suit for recovery of possession of plaint B schedule O.P(C).No.2007 of 2011 -: 4 :- on the strength of title, prohibitory and mandatory injunction concerning plaint A schedule, what is required to be proved by the petitioner/plaintiff is only her title and possession of the 12.5/8 cents which she acquired from her predecessor-in-interest who got it in the final decree in O.S.No.372 of 1994. Learned counsel contended that the question whether respondent is in possession of excess land is irreleant, nor a ground for petitioner to seek recovery of possession of any portion of such excess land so far as it did not form part of the property belonging to the petitioner. 7. I have been taken through Ext.P4, report by the learned counsel for respondent where it is stated that E2 and E3 plots (marked in the plan) corresponded to the final decree plots n O.S.No.372 of 1994 allotted to the predecessor-in-interest of petitioner and that Advocate Commissioner and Surveyor had identified the said property with the assistance of the FMB etc fixing the eastern boundary of the suit property, and its south eastern and south western boundary. It is pointed out that in the circumstance, in so far as the property which was alloted to the predecessor-in-interest of petitioner was identified, a further report and plan is not required. O.P(C).No.2007 of 2011 -: 5 :- 8. But, I find from the reports and plans that though, the Advocate Commissioner and Surveyor claim to have identified plaint A and B schedules the total extent is not specifically mentioned in either the report or plan. It is required to be ascertained whether property as identified by the Commissioner and Surveyor as belonging to the petitioner tallied with the property as described in the final decree allotted to the predecessor-in-interest of petitioner. For that, I am inclined to think that examination of the Advocate Commissioner and the Surveyor is required. 9. I make it clear that what is required by the learned Munsiff is only to identify the property to which petitioner is entitled as per her document of title and the final decree in O.S.No.372 of 1994. Resultantly this original petition is allowed and Ext.P9, order is set aside. I.A.No.718 of 2011 is remitted to the Court of learned Munsiff. Learned Munsiff shall examine the Advocate Commissioner and if necessary the Surveyor and ascertain whether property to which the petitioner is entitled is identified with reference to its survey number, extent and title deeds of petitioner. Based on a finding regarding that, learned Munsiff O.P(C).No.2007 of 2011 -: 6 :- shall pass appropriate orders on I.A.No.718 of 2011. Learned Munsiff is directed to expedite the proceeding and make the suit ripe for trial in the list. (THOMAS P JOSEPH, JUDGE) Sbna/-