IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 OP(C).NO. 245 OF 2010(O) ------------------------------------- OS.166/2009 OF MUNSIFF COURT, PAYYANNUR .................... PETITIONER: -------------------- D.GANAPATHI SHENOY, AGED 47 YEARS, S/O.LATE V.DAMODARAN SHENOY,'ANANDA BHAVAN', VAYAKKARA AMSOM DESOM, PADIYETCHAL.P.O., KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): -------------------------- 1. PALERI SASIDHARAN, AGED 45 YEARS, S/O.KUTHOOR KRISHNAN,VAYAKLKARA AMSOM DESOM, CHEERKKAD.P.O., PADIYETCHAL, KANNUR DISTRICT. 2. THEKKE VEETTIL THAMBAI, AGED 53 YEARS, W/O.LATE BHASKARAN, VAYAKKARA AMSOM DESOM, CHEERKKAD.P.O., PADIYETTUCHAL, KANNUR DISTRICT. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.166 OF 2009 DATED 9.12.2009. EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.1317 OF 1994 OF SRO PERINGOME. EXHIBIT P3 TRUE COPY OF THE SALE DEED NO.1320 OF 1994 OF SRO PERINGOME. EXHIBIT P4 TRUE COPY OF WRITTEN STATEMENT DATED 19.3.2010. EXHIBIT P5 TRUE COPY OF I.A. NO.1806 OF 2010 DATED 4.10.2010 0N THE FILE O THE MUNSIFF COURT, PAYYANNUR. EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A. NO.1806 OF 2010 DATED 5.10.2010 ON THE FILE OF MUNSIFF COURT, PAYYANNUR. EXHIBIT P7 TRUE COPY OF THE COMMISSION REPORT DATED 17.12.200. EXHIBIT P8 TRUE COPY OF COMMISSION REPORT AND SKETCH FILED BY ADVOCATE N.V.BALAKRISHNAN DATED 9.2.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== O.P(C) NO.245 of 2010 ==================================== Dated this the 01st day of December, 2010 J U D G M E N T Respondent Nos.1 and 2 are served but there is no response. 2. This petition is in challenge of Ext.P6, order dated October 5, 2010 dismissing Ext.P5, application for issue of a survey commission to identify plaint A and B schedule properties with reference to the documents of title relied on by petitioner. Petitioner sued respondents for a decree for prohibitory injunction claiming that plaint A schedule belongs to him as per document No.473 of 1988 and that plaint B schedule way also belongs to him which was formed by purchasing 1.5 cents each as per sale deed Nos.1317 and 1320 of 1994. On the north and south of plaint B schedule there are compound walls. Respondents are residing on the south of plaint B schedule. Petitioner prayed for a decree for prohibitory injunction restraining respondents from negotiating vehicles through the demolished portion of plaint B schedule road and for mandatory injunction to direct respondents restore demolished portion of plaint B schedule along its southern O.P(C) No.245 of 2010 -: 2 :- boundary. Respondent Nos.1 contended that properties are not identifiable and that petitioner has no right over plaint B schedule. It was also contended that compound wall on the south of plaint B schedule absolutely belonged to respondent No.1. 3. Petitioner filed Ext.P5, application for issue of a survey commission in the light of contentions raised by respondent No.1. That application was dismissed by the learned Munsiff as per Ext.P6, order stating that there is no dispute as to the identity involved and issue framed is whether plaint B schedule is a private road or otherwise. It is also pointed out by the learned Munsiff that in spite of granting several opportunities petitioner has not taken steps on time. Learned Munsiff further observed that Exts.C1 to C4 are already marked in the interlocutory stage. Hence the prayer for issue of a survey commission could not be sustained, it is held. 4. It is not as if there is no dispute as to identity. Respondent No.1 has raised a contention that the property claimed by petitioner is not identifiable. He has also raised a contention negativing plea of petitioner that plaint B schedule was formed by petitioner purchasing 1.5 cents each as per document No.1317 and 1320 of 1994 that petitioner has no right O.P(C) No.245 of 2010 -: 3 :- over plaint B schedule and that compound wall on the southern side of plaint B schedule belongs to him. In that circumstances it was necessary, to adjudicate the dispute regarding right over plaint B schedule and compound wall on its south. In the circumstances, a survey commission is necessary. Original Petition is allowed. Exhibit P6, order is set aside and Ext.P5, application stands allowed. Learned Munsiff shall appoint an Advocate Commissioner and Surveyor to identify plaint A and B schedule properties with reference to the relevant records as may be directed by the learned Munsiff. Batta payable to the Advocate Commissioner and Surveyor shall be borne by the petitioner and fixed by the learned Munsiff. THOMAS P. JOSEPH, JUDGE. vsv