IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 OP(C).NO. 275 OF 2010(O) ------------------------ OS.716/2004 OF MUNSIFF COURT, THALASSERY .................... PETITIONERS: --------------------- 1. SAROJINI, W/O.MENAMBATH GOPALAN, AGED 60 YRS., RESIDING AT MUZHAPPILANGAD AMSOM DESOM. 2. A.SHAJITH, S/O.SAROJINI, RESIDING AT MUZHAPPILANGAD AMSOM DESOM. 3. P,SHAJIL, S/O.SAROJINI, RESIDING AT MUZHAPPILANGAD AMSOM DESOM. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): ------------------------- K.RETHNAVATHI, W/O.ANANTHA NARAYANAN, KANDOTH HOUSE, MUZHAPPILANGAD AMSOM DESOM. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.275 of 2010 ==================================== Dated this the 12th day of October, 2010 J U D G M E N T This petition is filed in challenge of Ext.P8, order whereby learned Munsiff, Thalassery refused to remit Exts.P5 and P6, report and plan submitted by the Advocate Commissioner after measurement of the property with the assistance of Surveyor. According to the petitioners plaint A schedule property belonged to father-in-law of petitioner No.1, Kannan in jenm who executed gift deed No.1049 of 1951 dated 03.07.1951 in favour of husband of petitioner No.1 and others and the property was partitioned as per final decree in O.S. No.68 of 1965 as per which plaint A schedule (item No.1 in the final decree schedule) was allotted to and delivered over to husband of petitioner No.1. He claimed that the property he got by way of gift deed and partition is 33¾ cents in Sy.No.92/9 (R.S. No.175/11) measuring 21x19¼ for six feet koles. Plaint B schedule is described as 1.3 cents which according to petitioners forms part of plaint A schedule and allegedly trespassed upon by the respondent. Hence husband of petitioner No.1 sued respondent for declaration of his title over O.P(C) No.275 of 2010 -: 2 :- plaint B schedule and recovery of possession of that portion. Respondent contended that entitlement of the predecessor-in- interest of petitioners is only to 32 cents in R.S. No.175/11 and that plaint B schedule is part of her property, 35 cents in R.S. No.175/12. She also contended that the two properties are separated by physical boundary. Advocate Commissioner submitted Ext.P3, report which was remitted and thereafter Commissioner has filed Exts.P5 and P6, report and plan. Advocate Commissioner has identified properties comprised in R.S. No.175/11 and 175/12 and has stated that plaint B schedule is 1.25 cents comprised in R.S. No.175/12 while plaint A schedule is the property comprised in R.S. No.175/11 and extent of property in the possession of petitioners is 32 cents as per survey records as well. Advocate Commissioner has also stated that measurement of plaint and A and B schedules as per the kole measurement came to 33.5 cents. According to the Commissioner, entitlement of respondent as per document No.448 of 1976 is for property comprised in R.S. No.175/12 and that property was measured as per the said document and survey records. Extent was found to be 35 cents (taking in plaint B schedule also). O.P(C) No.275 of 2010 -: 3 :- 2. That report and plan are objected to by the petitioners. It is contended that the work memo given to the Advocate Commissioner for measurement of property from the compound wall to the northern side was not considered and that Commissioner has not stated that property was identified with the survey plans. Learned Munsiff has rejected the contentions raised by petitioners as per Ext.P8, order. I have heard counsel for petitioners and gone through the report and plan. Prima facie there is no reason to think that the properties have not been identified properly. Question whether in the light of boundary descriptions in gift deed No.1049 of 1951 and final decree schedule in O.S.No.68 of 1965 petitioners are entitled to claim title over the disputed plaint B schedule is a matter which the court has to decide after trial. On going through the report of the Advocate Commissioner I do not find any patent illegality or infirmity requiring interference under Article 227 of the Constitution. Nor is Ext.P8, amenable to challenge under the said Article as no gross injustice is caused to the petitioners on account of dismissal of the application to remit the report and plan. O.P(C) No.275 of 2010 -: 4 :- Resultantly, Original Petition is dismissed without prejudice to the right of petitioners to adduce evidence in proof of their claim of title over plaint B schedule at the time of trial. THOMAS P. JOSEPH, JUDGE. vsv