IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 OP(C).No. 4251 of 2011(O) ------------------------- IA NO.949/2011 IN OS.214/1996 of MUNSIFF COURT, ALATHUR .................... PETITIONER(S): -------------------- POULOSE, S/O.VARKEY, RESIDING AT NELLIKKAL VEEDU, PATTAYAMPADAM, KIZHAKKENCHERY AMSOM DESOM, ALATHUR TALUK. BY ADV. SRI.P.B.KRISHNAN SRI.N.AJITH SRI.P.B.SUBRAMANYAN RESPONDENT(S): --------------- MATHEW, S/O.KURIAKOSE, RESIDING AT KANJIRATHINGAL, PATTAYAMPADAM, KIZHAKKENCHERRY, ALATHUR TALUK-678541. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.4251/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 DATED 6.8.2011, TRUE COPY OF THE COMMISSION REPORT AND PLAN SUBMITTED BY THE COMMISSIONER EXT.P2 DATED 16.08.2011, TRUE COPY OF THE APPLICATION IA NO.949/2011 IN OS 214/1996 OF MUNSIFF COURT, ALATHUR EXT.P3 DATED 24.10.2011 TRUE COPY OF THE ORDER IN IA NO.949/2011 IN OS 214/1996 MUNSIFF COURT, ALATHUR. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.4251 of 2011 -------------------------------------- Dated this the 22nd day of December, 2011. JUDGMENT Petitioner, the defendant in O.S.No.214 of 1996 of the court of learned Munsiff, Alathur is aggrieved by Ext.P3, order disallowing the prayer for remission of Ext.P1, report and plan submitted by the Advocate Commissioner. 2. Respondent filed the suit originally for fixation of the eastern and northern boundary of suit property. The Advocate Commissioner submitted a report and plan. That was remitted to the Advocate Commissioner who after further inspection submitted Ext.P1, report and plan on 06.08.2011. Thereafter, plaint was amended to incorporate a prayer for recovery of possession and mandatory injunction on the strength of title. Petitioner filed additional written statement in answer to the amended plaint. That was followed by petitioner filing I.A.No.949 of 2011 to remit Ext.P1, report and plan. Main contention raised is that measurement was made as per old survey while re-survey sub divisions came into force in January, 2009 and the suit property and the rest of property belonging to the respondent are all included in the re-survey sub divisions, as per Ext.P1, report and plan total extent to which respondent is entitled is only 86.50 cents while he, as per re-survey records is holding 99.58 cents. Petitioner contended that in the circumstances, identification of properties as per the old survey is not valid and that properties are to be measured as per the re-survey. OP(C)No.4251/2011 2 3. The application was opposed by the respondent on various grounds including that dispute has to be resolved with reference to the measurement as per old survey as the dispute arose in the year, 1996 and re- survey came into force only in the year, 2009 and further that respondent has challenged the re-survey so far as his properties are concerned. Learned Munsiff accepted the contention and dismissed the application by Ext.P3, order. That order is under challenge. It is contended by the learned counsel that in view of the re-survey, it is necessary to identify properties with reference to the re-survey plan and at any rate, such a course will not cause any prejudice to the respondent. 4. Having heard learned counsel and gone through the records as well as the order under challenge I do not find reason to interfere. Reasons are that the dispute between parties arose in the year, 1996 at a time when the old survey was in force and necessarily, documents of title of parties also refer to the old survey. Being a suit for recovery of possession on the strength of title it is for the civil court to decide the issue regarding title and that cannot merely be based on the re-survey. Re-survey was brought into force only in January, 2009. That is also under challenge at the instance of respondent. Moreover, petitioner had filed I.A.Nos.1448 of 2009 and 1319 of 2009 for a direction to measure the properties with reference to the re-survey. Those applications were OP(C)No.4251/2011 3 dismissed by orders dated 05.01.2010 and 03.12.2010, respectively. Those orders were not challenged. In the circumstances there is no reason to interfere with Ext.P3, order. Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks