IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 OP(C).No. 3633 of 2011(O) ----------------------------------- IA. 1033/2011 INIA. 1397/2010 IN OS.243/2010 of ADDL.MUNSIFF, KASARAGOD .................... PETITIONER --------------------- 1. NARAYANI AMMA, W/O. MALINGU NAIR, AGED 71 YEARS, R/AT KUNDUKOCHI, BEDAKA VILLAGE, KASARAGOD DISTRICT. 2. T. KRISHNAN, S/O.MALINGU NAIR, AGED 52 YEARS, R/AT KUNDUKOCHI, BEDAKA VILLAGE, KASARAGOD DISTRICT. 3. PURUSHOTHAMAN NAMBIAR, S/O.K. NARAYANAN NAIR, AGED 46 YEARS, R/AT KUNDUKOCHI, BEDAKA VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): -------------------------- T. VELLACHI, AGED 72 YEARS, D/O.T. KANNAN, LAND LADY, R/AT KUNDUKOCHI, BEDAKA VILLAGE, KASARAGOD DISTRICT-671 314. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.3633/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1:-COPY OF THE JUDGMENT IN SA.251/96 DATED 4/3/2011 BY THIS HON'BLE COURT. EXT.P2:- COPY OF THE PLAINT DATED 27/7/2010 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD. EXT.P3:- COPY OF THE WRITTEN STATEMENT IN O.S.243/10 DT.20.09.10 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD. EXT.P4:- COPY OF THE COMMISSION REPORT IN O.S.195/86 DT.14.06.89. EXT.P4(a):- COPY OF THE PLAN IN O.S.195/86 DT.14.6.1989. EXT.P5:- COPY OF THE COMMISSION REPORT IN O.S.243/2010 DT.3/6/11. EXT.P5(a):- COPY OF THE PLAN IN O.S.195/86 DT.3.6.2011. EXT.P6:- COPY OF THE APPLICATION IN I.A.1033/11 IN I.A.1397/10 IN O.S.243/10 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD. EXT.P7:- COPY OF THE DEPOSITION OF THE COMMISSIONER DT.4.7.2011 IN IA.1033/11 IN O.S.243/10 ON THE FILE OF MUNSIFF COURT, KASARAGOD. EXT.P8:- COPY OF THE ORDER IN IA.1033/11 IN O.S.243/10 DT.24.9.2011 ON THE FILE OF MUNSIFF COURT,KASARAGOD. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3633 of 2011 ==================================== Dated this the 09th day of November, 2011 J U D G M E N T Exhibit P8, order passed by the learned Additional Munsiff, Kasargod on I.A. No.1033 of 2011 in I.A. No.1397 of 2010 in O.S. No.243 of 2010 is under challenge. Respondent filed the suit for prohibitory injunction claiming title and possession as per partition deed No.2152 of 1985. Petitioners claimed title and possession of the suit property described in the written statement as 'X' schedule as per document No.1109 of 1983. Petitioners also claimed that first petitioner has obtained a decree for injunction with respect to the property scheduled in O.S. No.195 of 1986 (B schedule therein) as confirmed by this Court in S.A. No.251 of 1996. In the course of trial of O.S. No.243 of 2010 respondent filed application to appoint a survey commission and that was allowed. Advocate Commissioner submitted report and plan which were marked in the trial court as C1 and C2. To that report and plan petitioners preferred objection raising various contentions. Learned Munsiff recorded evidence of Commissioner as C.W.1 and found that the objections raised by petitioners requires O.P(C) No.3633 of 2011 -: 2 :- consideration and accordingly, instead of setting aside Exts.C1 and C1 (marked in the trial court) remitted the same to the Advocate Commissioner for further inspection and report in the light of the objection raised by petitioners. Petitioners were directed to deposit Rs.1,000/- by additional batta. That order is under challenge. It is contended by learned counsel that since there is an approved plan in O.S. No.195 of 1986 a further report and plan is not required. 2. But it is to be ascertained whether the plea of respondent that she is in possession of the suit property as per partition deed No.2152 of 1985 is correct or not. It is also to be ascertained whether the said property is the property referred as B schedule in O.S. No.195 of 1986. Objections have been raised by petitioners to Ext.C1 and C2 marked in the trial court. Learned Munsiff was impressed by those contentions and directed that the Advocate Commissioner shall conduct further inspection and file further report and plan in the light of the objections raised by petitioners. In other words grievance of petitioners is redressed by the learned Munsiff directing the Advocate Commissioner to conduct further inspection and submit report and plan. 3. Other objection is concerning learned Munsiff directing O.P(C) No.3633 of 2011 -: 3 :- petitioners to pay additional batta. Having regard to the facts and circumstances of the case I am not inclined to interfere with the said direction. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv