IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 18126 of 2010(O) ----------------------- AGAINST THE ORDER DATED 08/04/2010 IN IA 919/2010 IN AS.132/2010 OF 1ST ADDL.DISTRICT COURT, THRISSUR ............... PETITIONERS / RESPONDENTS / RESPONDENTS : --------------------------------------------------------------------- 1. SAYED ABDUL THAHIR, "BHAI NIVAAS", SHORANUR VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. YOUSAF, S/O. PATHUKUDY MIRASHAHIB, CHELLAKKARA VILLAGE, TALAPPALLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENTS / PETITIONERS / APPELLANTS : ------------------------------------------------------------------- 1. MOHAMMED KOYA.K.A., HOUSE NO.V/180, KARANCHERY HOUSE, CHERUTHURUTHY VILLAGE, TALAPPALLY TALUK,THRISSUR DISTRICT. 2. ASAD.KM., HOUSE NO. V/180, KARANCHERY HOUSE, CHERUTHURUTHY VILLAGE, TALAPPALLY TALUK, THRISSUR DISTRICT. REP. BY HIS POWER OF ATTORNEY HOLDER THE 1ST RESPONDENT, MUHAMMED KOYA.K.A. R1 BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 18126 of 2010(O) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE JUDGMENT DATED 14.1.2010 IN O.S. NO. 318 OF 2008 ON THE FILE OF MUNSIFF COURT, WADAKKANCHERY. EXT.P2 : COPY OF THE I.A.NO. 919/2010 IN A.NO. 132/2010 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT COURT, THRISSUR. EXT.P3 : COPY OF THE OBJECTION FILED IN I.A.NO. 919/2010 IN A.NO. 132/2010 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT COURT, THRISSUR. EXT.P4 : COPY OF THE ORDER DATED 08.04.2010 IN I.A. NO. 919/2010 IN A.NO.132/2010 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT COURT, THRISSUR. RESPONDENT'S EXHIBITS: //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== W.P(C) No.18126 of 2010 ==================================== Dated this the 30th day of September, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.P4, order dated 08.04.2010 on I.A. No.919 of 2010 in A.S. No.132 of 2010 of the court learned Additional District Judge-I, Thrissur. Petitioners have obtained a decree for prohibitory injunction against respondents in O.S. No.318 of 2008 of the court of learned Munsiff, Wadakkancherry on the claim that they are in possession of the suit property. In the trail court an Advocate Commissioner inspected the property and submitted Exts.C1 and C1(a), report and plan and based on the evidence trial court decided the suit in W.P(C) No.18126 of 2010 -: 2 :- favour of petitioners. Respondents challenged that judgment and decree in A.S. No.132 of 2010 and filed I.A. No.919 of 2010 (Ext.P2) to appoint an Advocate Commissioner to measure and identify the property with the assistance of a Taluk Surveyor with reference to the document of title and prior documents. That application was allowed as per Ext.P4, order which is under challenge in this Writ Petition. Learned counsel for petitioners contends that the suit is merely for a decree for prohibitory injunction based on possession claimed by petitioners and that Ext.C1 and C1(a) are sufficient to identify the property for the purpose of deciding the issue regarding possession. According to W.P(C) No.18126 of 2010 -: 3 :- the learned counsel a survey commission as requested vide Ext.P2 was not necessary. Learned counsel for respondents contends that it was within the power of learned District Judge to call for a report as requested for in Ext.P2. 2. As contended by the counsel for petitioners and it is not disputed before me that suit is merely for a decree for prohibitory injunction based on possession of property claimed by petitioners. It is not as if in a suit for injunction identity of the property by survey commission not at all become necessary. But that question has to be decided while deciding the appeal. Proper course open to the learned District Judge was to consider Ext.P2, W.P(C) No.18126 of 2010 -: 4 :- application while deciding the appeal. If learned District Judge thought identification of the property as requested for in Ext.P2 is necessary to remand the case to the trial court for the said purpose rather than allowing Ext.P2, application before the appeal itself was heard. Difficulty is that if on Ext.P2 Advocate Commissioner conducts measurement of property and submit report the Advocate Commissioner could be called upon to decide the objection even before disposing of the appeal itself. Hence appropriate course was to hear Ext.P2, application along with the appeal and consequent on the decision on Ext.P2 if necessary by remanding the application to the trial court for decision. W.P(C) No.18126 of 2010 -: 5 :- Writ Petition is allowed and Ext.P4, order allowing Ext.P2 is set aside. Learned District Judge is directed to dispose of Ext.P2, application while deciding the appeal. THOMAS P. JOSEPH, JUDGE. vsv