IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 OP(C).No. 109 of 2010(O) ------------------------ AGAINST THE ORDER DATED 17/09/2010 IN IA.2902/2010 IN OS.9/1995 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER ------------------------------ SARASWATHI, W/O.LATE LAKSHMANAN, AGED 78 YEARS, AMBATTU PALAYAM, CHITTUR VILLAGE & TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, PALAKKAD TALUK, PALAKKAD DISTRICT - 678 001. 2. THE TAHSILDAR, TALUK OFFICE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 101. BY GOVT. PLEADER SHRI B.JAYASURYA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.109 of 2010 -------------------------------------- Dated this the 26th day of October, 2010. JUDGMENT This petition is in challenge of Ext.P4, order passed by learned Principal Sub Judge, Palakkad on I.A.No.2902 of 2010 in O.S.No.9 of 1995. Petitioner/plaintiff sought for a declaration regarding her ownership and possession of 6 ½ cents in survey No.3235 and two (2) cents in survey No.2745 whether described as puramboke land or otherwise in Government records and to quash proceedings initiated by respondents under the Land Conservancy Act (for short, “the Act”). Petitioner claimed that herself and predecessors in interest are in possession of the disputed property (8 ½ cents) since long and at any rate have perfected title by adverse possession and limitation. Respondents resisted the suit contending that petitioner has no right, title, interest or possession of any land in survey No.2745 or 3235 and that it is part of puramboke land. They also contended that in a previous litigation instituted by petitioner and her sons the above said fact was proved and the court did not grant relief in respect of the disputed chal. Petitioner filed I.A.No.2902 of 2010 seeking appointment of a survey commission. That application was dismissed vide Ext.P4, order which is under challenge in this petition. Learned counsel for petitioner contends that identification of property is necessary for adjudicating upon the dispute involved. Learned Government Pleader submits that attempt of petitioner is only to protract the proceedings. OP(C) No.109/2010 2 2. It is not disputed that petitioner and her sons had filed O.S.No.216 of 1989 against respondents claiming right and possession of properties comprised in survey Nos.2745, 2746 and 3235. That suit was decreed in part with respect to property in survey No.2746 alone. That decree has become final. It is while so that the present suit was filed on 02.01.1995 and the respondents filed written statement on 04.04.1995. When the suit came up for trial in the list petitioner applied for and obtained an order staying trial of the suit in view of O.S.No.216 of 1989 and after the appeal was dismissed the present suit was posted for trial in the list on 02.09.2010. Thereon petitioner filed I.A.No.2824 of 2010 to direct respondents to produce certain documents and that application was allowed and the documents were produced on 06.09.2010. Case was then posted on 08.09.2010. It is on that day petitioner has filed I.A.No.2902 of 2010 for appointment of a survey commission. Learned Sub Judge stated that in view of the decision in O.S.No.216 of 1989 where the rights of parties have already been decided a survey commission is not warranted. Learned counsel contends that the above finding of learned Sub Judge is not correct. Learned Government Pleader supported the order of court below. 3. I have been taken through a copy of the report and plan submitted in O.S.No.216 of 1989 (marked as Exts.C1 and C2 in that case). It is seen from the copy of Ext.C2, plan that the said plan was prepared with the assistance of a Surveyor and the properties in the respective survey numbers have been identified. The chal is shown as comprised in survey No.2745 (to the extent it OP(C) No.109/2010 3 passes through the property admittedly belonging to the petitioner) and though survey No.3235 is not specifically shown, going by the copy of Ext.C1, report the chal takes in that survey number also. In the light of Exts.C1 and C2 which were accepted in O.S.No.216 of 1989 between the same parties and that decision having become final it is unnecessary to take a fresh survey commission for, parties can rely on copy of Exts.C1 and C2 marked in the present suit through proper manner if it is required. Hence request for appointing a survey commission cannot be accepted. 4. Petitioner has a contention that she has been in possession of the disputed property (said to be puramboke land) and has perfected title by adverse possession. Learned counsel states that there are trees standing on the boarder of the water chal and in the property admittedly belonging to the petitioner and that it is necessary to depute an Advocate Commissioner to report on the nature and oldness of the trees which does not find a place in Ext.C1, report. Having heard learned counsel for petitioner and learned Government Pleader I am inclined to allow that request of petitioner. Resultantly this petition is allowed in part to the extent that I.A.No.2902 of 2010 is allowed to the extent that learned Sub Judge will appoint an Advocate Commissioner to report on the improvements standing in the property admittedly belonging to the petitioner and on the boarder of the water chal shown in Ext.C2, plan in O.S.No.216 of 1989 and report on its oldness and other details. I OP(C) No.109/2010 4 make it clear that appointment of the Advocate Commissioner is for the above limited purpose. Petitioner shall handover a copy of Exts.C1 and C2, report and plan to the Advocate Commissioner appointed by the court below for the said purpose. Batta payable to the Advocate Commissioner shall be fixed by the learned Sub Judge. Learned Sub Judge shall direct the Advocate Commissioner to expedite the proceedings so that trial of the suit is not prolonged further. THOMAS P.JOSEPH, Judge. cks