IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 OP(C).No. 1968 of 2011(O) -------------------------------------- OS.NO.442/1987 ADDL.MUNSIFF COURT-II, KOZHIKODE --------------------- PETITIONER -------------------- SHEKARAN NAIR, AGED 78 YEARS, S/O. KUNHIMALU AMMA, RESIDING AT VELLAKKAT HOUSE, FEROKE AMSOM, NALLUR DESOM, KOZHIKODE TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.KODOTH PUSHPARAJAN SRI.K.JAYESH MOHANKUMAR SMT.VANDAMA MENON SMT.ANJU P.NAIR RESPONDENT(S): ------------------------- V. ARUMUGHAN, S/O. KUTTAYI, THEKKEMADATHUMKUTTI PARAMBA, CHERUVANNOOR AMSOM AND DESOM, KOZHIKODE TALUK-673 001. BY ADV. SRI.P.V.KUNHIKRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.1968/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGEMENT DATED 19/11/1994 IN OS NO.442/1987 ON THE FILE OF ADDL.MUNSIFF COURT-II, KOZHIKODE. P2 COPY OF THE REMAND ORDER DATED 12/1/2011 PASSED BY THIS HON'BLE COURT IN S.A.NO.25/1998(14). P3 COPY OF THE COMMISSIONER'S REPORT DATED 31/5/2011 IN OS NO.442/1987. P4 COPY OF THE COMMISSIONER'S PLAN DATED 31/5/2011 IN OS NO.442/1987. P5 COPY OF THE AFFIDAVIT ACCOMPANYING I.A.NO.2053/2011 IN OS NO.442/1987. P6 COPY OF THE TRANSFER O.P.NO.141/2011 DISTRICT COURT(P), KOZHIKODE RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1968 of 2011 -------------------------------------- Dated this the 19th day of July, 2011. JUDGMENT Respondent appears through counsel. 2. Plaintiff in O.S.No.442 of 1987 of the court of learned Additional Munsiff-II, Kozhikode is the petitioner, aggrieved by the order passed by learned Additional Munsiff posting I.A.No.2053 of 2011 to be decided with the suit. 3. Petitioner sued the respondent for recovery of possession of plaint C schedule on the strength of title and obtained Ext.P1, judgment in his favour. That judgment and decree were reversed by the appellate court against which petitioner came with S.A.No.25 of 1998. This Court by Ext.P2, judgment dated 12.01.2011 remitted the case to the trial court for fresh decision after giving opportunity to the petitioner to get the disputed property identified based on Ext.A1, partition deed. After remand the Advocate Commissioner submitted Exts.P3 and P4, report and plan. Petitioner filed I.A.No.2053 of 2011 to set aside Exts.P3 and P4, report and plan contending that the property was not identified with reference to Ext.A1 and the assignment deed executed by one Kesavan Nair in favour of the respondent. Learned Munsiff without conducting an enquiry on I.A.No.2053 of 2011 has posted that application to be decided with the suit. That procedure of the learned Munsiff is under challenge. Learned counsel has OP(C) No.1968/2011 2 contended that since the suit is for recovery of possession on the strength of title, in the absence of a proper report and plan identifying the suit property petitioner may not get relief. It is also contended that if the question regarding acceptability of Exts.P3 and P4, report and plan is relegated to the stage of trial it will cause much inconvenience since if on examination of Advocate Commissioner and Surveyor it is revealed that the report and plan are liable to be set aside, again the same process of appointing an Advocate Commissioner and Surveyor and obtaining a report and plan has to be resorted to. 4. Having regard to the nature of relief prayed for and in view of the direction this Court had issued in Ext.P2, judgment it is necessary and proper that learned Munsiff considers I.A.No.2053 of 2011 and pass appropriate orders. An enquiry is required to be conducted on I.A.No.2053 of 2011 on the question of acceptability of Exts.P3 and P4, report and plan. Learned counsel submitted that since a connected suit is pending in another court petitioner has filed Transfer O.P.No.141 of 2011 before learned District Judge, Kozhikode for transfer of O.S.No.442 of 1987 to that court. If that be so, learned Munsiff can keep the enquiry on I.A.No.2053 of 2011 pending until appropriate orders are passed in Transfer O.P.No.141 of 2011. Resultantly this Original Petition is allowed. Learned Additional Munsiff-II, Kozhikode is directed to consider and pass orders on I.A.No.2053 of 2011 in O.S.No.442 of 1987 before the case is posted for trial in the list. OP(C) No.1968/2011 3 Learned Additional Munsiff-II shall await the decision in Transfer O.P.No.141 of 2011 for such consideration. THOMAS P.JOSEPH, Judge. cks