IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 OP(C).No. 2418 of 2011(O) ------------------------- AGAINST THE ORDER IN IA 2044/2011 IN OS.375/2006 of PRINCIPAL MUNSIFF'S COURT,TRIVANDRUM .................... PETITIONER(S): ------------------------- JYOTHI KUMAR, KUZHIVILA VEEDU, KATTACHAL ROAD, VETTAMUKKU, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR, SRI.T.K.ANANDAKRISHNAN, SRI.JELSON J.EDAMPADAM. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM - 695 001. 3. THE TAHSILDAR, OFFICE OF THE TAHSILDAR THIRUVANANTHAPURAM - 695 001. 4. THE VILLAGE OFFICER,SASTHAMANGALAM, THIRUVANANTHAPURAM-695 031. 5. P.VELAYUDHAN NAIR, S/O.PADMANABHA PILLAI, ACKARACHERI,THEKKEDAM, IDAPPAZHINJI, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 031. Kss ..2/- ..2.... OPC.NO.2418/2011 O 6. P.BHANUMATHY AMMA, D/O,PADMAVATHY AMMA, CHENKOTTUKONAM VEEDU, IDAPPAZHNJI, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 031. 7. JANARDHANAN NAIR, S/O.PADMANABHA PILLAI, KUNNUPURAM HOUSE, (BHADRA) SASTHA NAGAR, IDAPPAZHNJI, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 532. 8. P.SARASWATHY AMMA, KUNNUMPURATH HOUSE, SASTHA NAGAR, IDAPPAZHNJI, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 532. 9. BHASKARAN NAIR, S/O.PADMANABHA PILLAI, SUBHASREE, T.C.17/1209, SASTHA NAGAR, IDAPPAZHNJI, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 532. 10. KRISHNAN NAIR, SREEVILAS ,T.C.16/1460, JAGATHY, THIRUVANANTHAPURAM - 695 121. 11. SWORNAKUMARI, W/O.P.VELAYUDHAN NAIR, AMBADI, LAKE GARDENS, MALABAR, VATTIYOORKAVU, THIRUVANANTHAPURAM - 695 032. 12. SURESH KUMAR, S/O.P.VELAYUDHAN NAIR, AMBADI, LAKE GARDENS, MALABAR, VATTIYOORKAVU, THIRUVANANTHAPURAM - 695 032. 13. RENUKA, D/O.SWORNAKUMARI, AMBADI, LAKE GARDENS, MALABAR, VATTIYOORKAVU, THIRUVANANTHAPURAM - 695 032. 14. DEVAKUMAR, S/O.P.VELAYUDHAN NAIR, AMBADI, LAKE GARDENS, MALABAR, VATTIYOORKAVU, THIRUVANANTHAPURAM - 695 032. R1 TO R4 BY GOVERNMENT PLEADER SRI. T.K.SAJEEV THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2418/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.375/2006. P2: COPY OF THE AFFIDAVIT AND THE ACCOMPANYING APPLICATION SEEKING TO RESTRAIN FROM ASSIGNING ANY PORTION OF THE PLAINT SCHEDULE PROPERTY. P3: COY OF THE OBJECTIOIN DTD. 26/07/2006. P4: COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT/ 2ND RESPONDENT IN O.S.NO.375/2006. P5: COPY OF THE AFFIDAVIT IN LIEU OF THE CHIEF EXAMINATION SUBMITTED BY THE PETITIONER IN O.S.375/2006. P6: COPY OF THE AFFIDAVIT AND THE APPLICATION ACCOMPANYING THE SAME FOR APPOINTMENT OF AN ADVOCATE COMMISSIONER. P7: COPY OF THE ORDER DTD. 27/06/2011 IN I.A.NO.2044/2011 IN O.S.NO.375/2006 OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2418 of 2011 --------------------------------------- Dated this 20th day of August, 2011 JUDGMENT Second plaintiff in O.S.No.375 of 2006 of the Court of learned Munsiff, Thiruvananthapuram is aggrieved by Ext.P7, order dated 27.06.2011 on I.A.No.2044 of 2011. Petitioner's father filed that suit for a declaration of title by adverse possession over 80 cents in survey 1313. There was an earlier litigation with the Government, as O.S.No.890 of 1970 where according to the petitioner, his father was found to be in possession of the property involved in that suit and A.S.No.394 of 1975 preferred by the Government was dismissed. Petitioner's father filed the present suit when the Government attempted to assign the property. Petitioner wanted an Advocate Commissioner to be appointed vide I.A.No.2044 of 2011. That application was dismissed by the impugned order. 2. Learned counsel submitted that it is necessary to appoint an Advocate Commissioner to identify the property in the way requested for. It is also the grievance of petitioner that learned Munsiff has made certain observations regarding the title of petitioner in the impugned order. O.P(C).No.2418 of 2011 -: 2 :- 3. I have heard learned Government Pleader appearing for respondents 1 to 4. 4. It is pointed out that trial of the case is going on. In that situation, I am not inclined to interfere with the impugned order. But, I make it clear that the correctness of the impugned order could be raised by petitioner in case any appeal arises from the judgment and decree in O.S.No.375 of 2006, under Sec.105 of the Code of Civil Procedure (for short, "the Code”). I also bear in mind that if necessary, first appellate court is entitled to consider the said aspect of the matter also. But, if learned Munsiff has made any observation regarding the right claimed by petitioner in the impugned order, that observation has to be confined to the disposal of I.A.No.2044 of 2011 and shall not in any way affect the ultimate decision that the learned Munsiff has to take in the suit. Resultantly this original petition is disposed of with the following direction: (i) It is made clear that it is open to the petitioner to challenge correctness of the impugned order in case an appeal arises from the judgment and decree in O.S.No.375 of 2006 invoking Sec.105 of the Code and in case any such contention is raised the appellate court shall look into that contention as well. O.P(C).No.2418 of 2011 -: 3 :- (ii) Any observation made by the learned Munsiff as to the right of petitioner in the impugned order shall be confined to the disposal of I.A.No.2044 of 2011 and shall not in any way influence the ultimate decision that the learned Munsiff has to take in the suit. (THOMAS P JOSEPH, JUDGE) Sbna/-