IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 OP(C).No. 3071 of 2011(O) ----------------------------------- AGAINST THE ORDER IN IA 1253/2011 IN OS.166/2009 of MUNSIFF COURT, TIRUR ............................................................................................................................................................. PETITIONER : --------------------- MADAMBAT HANEEFA, S/O.MOIDEENKOYA, MADAMBAT HOUSE, K.PURAM POST, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENTS : ------------------------ 1. PADMINI AMMA, D/O.MALIYEKKAL LAKSHMI AMMA, KERALADEESWARAPURAM AMSOM DESOM, K.PURAM POST, PIN 676 101. TIRUR TALUK, MALAPPURAM DISTRICT. 2. MADAMBAT ABDURAHIMAN, S/O.MOIDEENKOYA, MADAMBAT HOUSE, K.PURAM POST, PIN 676 101. TIRUR TALUK, MALAPPURAM DISTRICT. ADV. SRI.K.K.MOHAMED RAVUF FOR R-1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- OP(C).No. 3071 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE PLAINT IN O.S. 166/2009 BEFORE THE MUNSIFF COURT, TIRUR DATED 08.04.2009. EXT.P2 COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/2ND DEFENDANT DATED 12.11.2009. EXT.P3 COPY OF THE 1ST COMMISSIONER REPORT DATED 01.06.2009. EXT.P4 COPY OF THE APPLICATION I.A.1396/2010 IN O.S. NO. 166/2009 DATED NIL EXT.P5 COPY OF THE WORK MEMO SUBMITTED BY THE PETITIONER DATED 16.06.2011. EXT.P6 COPY OF THE 2ND COMMISSIONERS REPORT DATED 17.06.2011. EXT.P7 COPY OF THE I.A.1253/2011 IN O.S.166/09 FILED BY THE PETITIONER DATED 29.06.2011. EXT.P8 COPY OF THE COUNTER TO THE I.A.1253/2011 IN O.S.166/09 FILED BY THE PETITIONER DATED 12.07.2011. EXT.P9 COPY OF THE ORDER IN I.A.1253/2011 IN O.S. 166/09 FILED BY THE PETITIONER DATED 01.09.2011. RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE DSV/- THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3071 of 2011 --------------------------------------- Dated this 18th day of November, 2011 JUDGMENT Second defendant in O.S.No.166 of 2009 of the Court of learned Musniff, Tirur challenges Ext.P9, order refusing to remit Ext.P6, report and plan. First respondent sued petitioner and the second respondent for a decree for declaration of her right over the property and to restrain petitioner and second respondent from trespassing into the suit property. According to the first respondent, while she constructed compound wall towards the east and north of her property, she left some space on the further east and north of the compound wall for her purpose. That portion according to the first respondent formed part of plaint schedule property. Petitioner and second respondent contended that first respondent has no land beyond the eastern side of the compound wall and that the space on the eastern side of compound wall is a way which existed from time immemorial originating from the Thanoor-Moochickal road on the further south and leading to the Mosque on the northern side. Later the owners of the properties on the further east of the way relinquished portion of their property and the way was widened. O.P(C).No.3071 of 2011 -: 2 :- Advocate Commissioner appointed in the case submitted a report. First respondent filed Ext.P4, application to remit Ext.P3, report for measurement of the properties with reference to the document of title referred to in paragraph 2 of Ext.P4, application as also the documents relied on by petitioner and the second respondent. Petitioner preferred Ext.P5, work memo where also a similar request was made. Learned Munsiff directed the Advocate Commissioner to prepare a fresh report and plan in view of the request made by the first respondent, petitioner and the second respondent. Ext.P6 is the report and plan the Commissioner has submitted. Petitioner filed Ext.P7, application for a further remission of Ext.P6, report and plan. Petitioner contended that the report and plan do not tally among themselves and with the plaint schedule descriptions or the claim made by the first respondent in the plaint. The request was objected by the first respondent. Learned Munsiff by Ext.P9, order rejected the request for remission. Ext.P9, order is under challenge. 2. Learned counsel for petitioner contends that the stand of first respondent in the plaint is that there is no way passing through the suit property within the compound wall and that O.P(C).No.3071 of 2011 -: 3 :- according to her the way is on the east of the compound wall which forms part of the plaint schedule. Learned counsel has invited my attention to the plan appended to Ext.P6, report where towards the northern portion of the eastern wall, at point C, the wall is shown as the eastern boundary of property of the first respondent. It is also the grievance of petitioner that though first respondent herself had requested and petitioner and second respondent also made such a request to measure the properties with reference to the document of title, Commissioner has made no attempt to measure the property with reference to the document of title. I have heard learned counsel for first respondent also. 3. It is not as if Advocate Commissioner has declined to measure the property with reference to the document of title. The Advocate Commissioner has expressed his inability to measure the property with reference to the documents of title since the properties of third parties are also involved and as the said properties are comprised in other survey numbers. I am taken through the plaint averments to convince me that according to the first respondent, she has left some space along the eastern side of the compound wall but, the plan appended to O.P(C).No.3071 of 2011 -: 4 :- Ext.P6 does not support that version. If Ext.P6, report and plan do not support the plaint averments, consequences if any has to be suffered by the first respondent. 4. I must bear in mind that on Ext.P7, application neither the Advocate Commissioner nor the Surveyor has been examined. At the same time it is not as if petitioner and second respondent cannot pursue the objection preferred to Ext.P6, report and plan. It is open to the petitioner and second respondent to examine the Advocate Commissioner and/or Surveyor and show that Ext.P6, report and plan are not acceptable. If in the course of the trial, learned Munsiff finds that the report and plan are not acceptable and that measurement of properties with reference to documents of title referred to in Ext.P4, application and Ext.P5, work memo is necessary for a settlement of the dispute, it is open to the learned Munsiff to issue necessary direction to the Advocate Commissioner and Surveyor. In that view of the matter, I do not find reason to interfere with Ext.P9, order. Resultantly this original petition is disposed of making it clear that it is open to the petitioner and the second respondent to pursue their objection to Ext.P6, report and plan in the course of trial and examine the Advocate Commissioner and/or Surveyor O.P(C).No.3071 of 2011 -: 5 :- and show that Ext.P6, report and plan are not sufficient or useful to decide the controversy. If on such examination learned Munsiff is satisfied that a measurement of the property as requested in Exts.P4, application and P5, work memo is necessary, it is open to the learned Munsiff to set aside/remit the report and plan and/or issue necessary directions to the Advocate Commissioner to submit further report and plan if any clarification is required and as is found necessary. (THOMAS P. JOSEPH, JUDGE) Sbna/-