IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No.36106 of 2008 (W) ----------------------------------- AGAINST THE ORDER IN IA 4338/2008 IN OS.98/2004 of II ADDL.M.C., ERNAKULAM .................... PETITIONER/PLAINTIFF: ----------------------------- ABDUL KHADER, AGED 52 YEARS, S/O.SULAIMAN, MUNDAKKAL HOUSE, VADAKODE KARA, THRIKKAKARA NORTH VILLAGE. BY ADV. SRI.M.A.ABDUL HAKHIM SRI.JYOTHISH.J.KALLINGAL RESPONDENTS: ------------------ 1. ABU, AGED ABOUT 59 YEARS, S/O.PAREEKUTTY, NAMPIKUDY HOUSE, MUNDAKKAL, VADAKODE KARA, THRIKKAKARA NORTH VILLAGE. 2. MUHAMMED, AGED ABOUT 64 YEARS, S/O.AMMU, POOTTUNGAL PARAMBU, MUNDAKKAL, VADAKODE KARA, THRIKAKKARA NORTH VILLAGE. 3. IBRAHIM, AGED ABOUT 56 YEARS, S/O.PAREED, MUNDAKKAL HOUSE, VADAKODE KARA, THRIKKAKKARA NORTH VILLAGE. ADV. SRI.S.SUDHISH KUMAR FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.36106 of 2008 (W) APPENDIX PETITIONER'S EXTS:- EXT.P1:- A PHOTOSTAT COPY OF THE PLAINT IN O.S. NO.98/04. EXT.P2:- A PHOTOSTAT COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER. EXT.P3:- A PHOTOSTAT COPY OF THE INTERIM REPORT FILED BY THE ADVOCATE COMMISSIONER AND THE ATTACHED REPORT OF THE PRIVATE SURVEYOR. EXT.P4:- A PHOTOSTAT COPY OF THE ORDER OF THE COURT BELOW IN I.A. NO.4338/08 IN O.S. NO.98/04. ...................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.36106 of 2008 ------------------------------------------------ Dated this the 2nd day of January, 2009 JUDGMENT The plaintiff in O.S.98/04 on the file of the Munsiff's Court, Ernakulam is the petitioner in this Writ Petition and the respondents are the defendants in the said suit. The prayer in this Writ Petition is to set aside Ext.P4 order passed by the Munsiff and to allow I.A.4338/08 filed by him for issuance of a commission to measure out the properties with the help of a Thaluk Surveyor as per the old survey plan. 2. Heard arguments of counsel on both sides. 3. In O.S.98/04 the prayer is for recovery of possession of 'B' schedule property from the defendants after demolishing a pit taken by them for construction of latrine as 'B' schedule portion of the W. P. C No.36106 of 2008 -2- property, according to the petitioner is part of 'A' schedule property and latrine is being attempted to be constructed in 'B' schedule portion thereof by the defendants trespassing therein and for other reliefs. 4. 'A' schedule property as described in the plaint is 37 cents of land that lies on the eastern side of the road from out of 50 cents of property obtained by the plaintiff under two documents namely gift deed No.2248/1976 and sale deed No.2249/1976 of Sub Registry office, Edappally. The property is described as property comprised in Sy. No.918/7 of Thrikkakara North Village and 'B' schedule is described as a narrow strip of land from out of 'A' schedule property which has been trespassed upon by the defendants wherein they have constructed a wall and other structures. W. P. C No.36106 of 2008 -3- 5. On the application of the plaintiff, a Commissioner was deputed to measure out the properties and to locate the portion of the property so trespassed upon including its extent. The commissioner was being deputed with the assistance of a private surveyor. The Commissioner as per Ext.P2 report submitted that since nobody could identify any old survey stones they could measure the property only as per the resurvey records and that plaintiff and the defendants as also their counsel gave assent for measuring property by the resurvey plans. The Commissioner has stated that the private surveyor had opined that the measurement of the plaintiff's property will help to resolve the dispute since it will show as to whether plaintiff has property less than what is stated in the title deeds and also whether there is trespass or W. P. C No.36106 of 2008 -4- not. It was accordingly that the property was measured and the Commissioner submitted Ext.P2 report along with a plan annexed thereto. The plan annexed to the said report which is filed along with the Writ Petition marked Ext.P2 at running page No.25 of the writ petition shows that the extent of the scheduled property on the east of the public path way possessed by the petitioner/plaintiff is 37.090 cents. It is evident therefore, that the extent of land held by the plaintiff on the eastern side of the public pathway though according to him is only 37 cents its actual extent is 37.090 cents namely that the petitioner/plaintiff has possession of land in excess of the actual area. No iota of evidence could be gathered to show that there is any trespass. However, on the objections of the plaintiff that the property had not been measured as per old W. P. C No.36106 of 2008 -5- survey plan the commission report was remitted to the Commissioner and the Commissioner vide Ext.P3 interim report submitted that it is difficult to measure out the property as per the old survey plan since neither an old survey stone nor any old boundary can be ascertained from the locality to start measurement fixing of old boundaries. He has also produced along with the report, the report submitted by the private surveyor at running page 27 of the Writ Petition. I.A.4338/08 filed by the petitioner to measure out the property with the help of Thaluk Surveyor was thereupon filed and that was dismissed by the court below vide Ext.P4 order observing that the scheduled property is only 37 cents in block No.5 of resurvey No.790/6 even as described in the plaint that the petitioner/plaintiff has by describing the W. P. C No.36106 of 2008 -6- property as such has accepted the re-survey measurement and that despite the commissioner and surveyor expressing difficulty to measure out the property as per the old survey plan in the absence of any landmark at site or in the vicinity, the petitioner/plaintiff filing I.A.4338/08 is only an abuse of the process of court and the application is intended only to delay the disposal of the case. Arguments advanced by counsel for the petitioner, however does not suggest also as to how the situation can be meted out. Experience shows that when Thaluk Surveyor is ordered to assist the Commissioner, the matter lies over for years for want of assistance being rendered by Thaluk Surveyor amidst several works which are to be attended by them. Inasmuch as the plaintiff is shown to be in possession of excess area than that is claimed by him and in W. P. C No.36106 of 2008 -7- view of Ext.P2 Commission Report there is no reason why a supplementary report is to be obtained by measuring out the property with the assistance of a Thaluk Surveyor as per the old survey plan, though the court below once remitted the Commission Report probably without realising the difficulty that may be experienced by the Commissioner to measure out the properties as per the old survey with the assistance of the Thaluk Surveyor. In the circumstances, I do not find any merit in this Writ Petition. This Writ Petition, therefore, deserves only to be dismissed. 6. In the result, I dismiss this Writ Petition. K.P.BALACHANDRAN, JUDGE kns/-