IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 WP(C).No. 18236 of 2010(O) -------------------------- AGAINST THE ORDER DATED 17/03/2010 IN IA.270/10 IN OS.334/2007 of MUNSIFF COURT, PUNALUR .................... PETITIONER: --------------- THOMAS, S/O. VARGHESE, MANNA VILLA, VENCHEMP, KARAVALUR VILLAGE, KOLLAM. BY ADV. SRI.ALEX N.MATHEW (KOLLAM) SRI.H.RAMANAN SRI.JAMES JOSE RESPONDENTS: --------------- 1. KARAVALUR GRAMA PANCHAYATH, MATHRA.P.O., KARAVALUR REP. BY ITS SECRETARY. 2. JOSEPH MATHEW, MEMBER OF PANCHAYATH KARAVALUR GRAMA PANCHAYATH MATHRA.P.O., KARAVALUR. 3. OMANA SOMARAJAN, MEMBER OF PANCHAYATH, DO-DO- 4. DISTRICT PANCHAYATH KOLLAM PANCHAYATH OFFICE, THEVALLY.P.O., KOLLAM REP. BY ITS SECRETARY. 5. MARIAMMA THOMAS, W/O. THOMAS, MANNA VILLA, KARAVALUR, KOLLAM. 6. MARYKUTTY MATHAI, PUTHENPURA VEEDU, VENCHEMP, KARAVALUR VILLAGE, KOLLAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.18236 of 2010 --------------------------------------- Dated this 11th day of June, 2010 JUDGMENT This writ petition is in challenge of Ext.P7, order on I.A.No.270 of 2010 in O.S.No.334 of 2007 of the court of learned Munsiff, Punalur. Petitioner along with respondent Nos.5 and 6 filed that suit for prohibitory injunction to restrain respondents from trespassing into plaint A and B schedule properties, demolishing its boundaries or creating pathway through the said properties. Contesting respondents/defendants raised a contention that petitioner and respondent Nos.5 and 6 trespassed into a portion of the existing pathway and reduced that portion into their possession. An Advocate Commissioner inspected the property and submitted report and mahazar (Exts.P3(a) and P3(b)). Petitioner has preferred Ext.P4, objection to that report stating that there is no proper identification of the property wanted the report to be remitted to the Advocate Commissioner or it to be set aside. Learned counsel for petitioner states that the prayer in Ext.P4 has not so far been considered. While so petitioner filed Ext.P6, application to appoint an Advocate Commissioner and Surveyor to measure the suit properties and file report and plan. Learned W.P.C.No.18236 of 2010 : 2 : Munsiff by Ext.P7, order dismissed Ext.P6, application observing that there is no dispute on identity of the property and that enquiry sought for is regarding possession exercised by petitioner in the suit property which is not a matter to be decided by the Advocate Commissioner. Ext.P7, order is under challenge. Learned counsel contends that there is actually dispute regarding identity of the property as stated in paragraph 5 of the written statement of contesting respondents. 2. I have gone through Ext.P5, copy of written statement of contesting respondents. What is contended in paragraph 5 of the written statement is that petitioner and respondent Nos.5 and 6 trespassed into a portion of the pathway that existed and reduced that portion into their possession and accordingly petitioner and respondent Nos.5 and 6 are in possession of more land than what is stated in their document of title. 3. I must bear in mind that this is a simple suit for injunction based on possession claimed by petitioner and respondent Nos.5 and 6 over the suit property. If contesting respondents have a case that petitioner and respondent Nos.5 and 6 have trespassed into any portion of the pathway and reduced such portion into their possession it was for them to seek measurement of the property with assistance of a Surveyor. There is no reason why in the nature of the claim made by petitioner and respondent Nos.5 and 6 nature of the suit and reliefs prayed for, W.P.C.No.18236 of 2010 : 3 : property should be measured at the instance of petitioner. As such, I do not find reason to interfere with the order under challenge. Resultantly the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-