IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 OP(C).No. 2760 of 2011(O) ------------------------------------- [O.S.NO.118/2008 OF MUNSIFF'S COURT, TIRUR] .................... PETITIONER/PLAINTIFF: ----------------------------------- KOTTEERI RUGMINI AMMA'S SON NARAYANAN NAIR BY MUKTHYAR AGENT ANOOP, "JYOTSNA", PUTHUPPALLI, TIRUR TALUK. BY ADVS. SRI.BLAZE K.JOSE, SMT.N.DEEPA. RESPONDENTS/DEFENDANTS: --------------------------------------------- 1. BEEVUNGAL SHAMSUDHEEN, S/O.ABDULLA, KALPAKANCHARRY AMSOM, DESOM, TIRUR, PIN - 676 601. 2. ABDUL HAKHEEM, S/O.AMBALATHINGAL MUHAMMED, MARAKKARA AMSOM, KEZHMURUI DESOM, PIN - 676 601. 3. MANOJ, S/O.KUNNANATH UNNIKRISHNAN NAIR, THOZHUVANUR AMSOM DESOM, TIRUR, PIN - 676 601. 4. MEENAKSHI AMMA, D/O.RUGMINI AMMA, A-303 VELANTINE APARTMENTS, A2 OFF FILM CITY ROAD, MALAD (E), MUMBAI, PIN - 400 001. BY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2760/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE WORK MEMO DTD. 16/06/2009 IN O.S. NO.118/2008. EXT.P.2: COPY OF THE C.R. AND PLAN DTD. 30/11/2010. EXT.P.3: COPY OF THE ORDER IN I.A. NO. 124/2011. EXT.P.4: COPY OF THE ORDER IN I.A. NO.460/2011. EXT.P.5: COPY OF THE PETITION TO SET ASIDE THE COMMISSION REPORT AND TO ASCERTAIN THE FACTS AS I.A. NO. 1570/2011. EXT.P.6: COPY OF THE ORDER IN I.A. NO. 1570/2011 DTD. 09/08/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2760 of 2011 -------------------------------------- Dated this the 10th day of October, 2011. JUDGMENT Respondents are served but, there is no response. 2. The challenge is to Ext.P6, order dismissing I.A.No.1570 of 2011 in O.S.No.118 of 2008 of the court of learned Munsiff, Tirur. As amended, that is a suit for declaration of title over plaint A and B schedules (as the learned counsel submits) and for other reliefs. Plaint A schedule item No.1 is 41 cents and item No.2 is 19 cents which according to the petitioner, are item Nos.15 and 16 of partition deed No.1916 of 1974. Petitioner claims title over plaint B schedule – 13 cents as per sale deed No.920 of 1998. Respondents disputed title of petitioner and contended that plaint B schedule forms part of item No.17 of partition deed No.1916 of 1974 allotted to their predecessor-in-interest. The Advocate Commissioner appointed in the case submitted a report and plan. That was remitted on the request of respondents and after remission, Advocate Commissioner submitted Ext.P2, report and plan. At a time when the suit was merely for injunction petitioner filed I.A.No.124 of 2011 to remit that report and plan. That application was dismissed as suit was merely for injunction. Certain other observations were also made by the learned Munsiff. It is later that the plaint was amended to incorporate a prayer for declaration of title. Following that, petitioner filed I.A.No.1570 of 2011 to set aside Ext.P2, report and plan OP(C)No.2760/2011 2 contending that the Advocate Commissioner has not properly identified plaint B schedule. That application was dismissed by the learned Munsiff as per Ext.P6, order for the reason that I.A.No.124 of 2011 has already been dismissed. Learned counsel contends that I.A.No.124 of 2011 was dismissed at a time when the suit was merely for an injunction and it is later that the plaint was amended to incorporate a prayer for declaration of title. 3. It is also pointed out by the learned counsel that even as per Ext.P2, report the Advocate Commissioner was not able to say whether the disputed property – plaint B schedule is part of item No.17 of partition deed No.1916 of 1974. According to the learned counsel, that being the dispute between the parties it has to be resolved by proper measurement. It is submitted by learned counsel that the Advocate Commissioner had to measure the disputed property with reference to the relevant survey records (since the survey number of the disputed property and item No.17 of the partition deed are different) as also sale deed No.920 of 1998 and its prior documents if any. 4. The dismissal of I.A.No.124 of 2011 cannot be a reason for dismissing I.A.No.1570 of 2011 since the former application was dismissed at a time when the suit was merely for an injunction where question of title was not required to be gone into except for tracing possession. Now that a prayer for OP(C)No.2760/2011 3 declaration of title is also incorporated in the suit, dismissal of I.A.No.124 of 2011 cannot stand in the way of learned Munsiff considering I.A.No.1570 of 2011. 5. It is seen from Ext.P2, report that the Advocate Commissioner in paragraph 8 has observed that since sufficient details are not available with reference to item No.17 of partition deed, he was not able to plot item No.17 of the partition deed (plot 'C' in the plan) in the way he has done with respect to item Nos.15 and 16 of the partition deed. In paragraph 9 of the report the Advocate Commissioner states that plot 'D' is the disputed property and that it does not come within item Nos.15 and 16 of partition deed No.1916 of 1974. But the Advocate Commissioner has not stated whether the disputed property forms part of item No.17 of the said partition deed. That being the claim made by the respondents, the said aspect also is required to be considered. 6. On hearing learned counsel for petitioner and going through the report and plan I do not consider it necessary to remit Ext.P2, report and plan. What is required is only to identify plaint B schedule with reference to sale deed No.920 of 2008 and the prior documents if any relied by petitioner as also the relevant survey records since it is pointed out that plaint B schedule is comprised in re-survey No.190/3 and item No.17 of the partition deed is comprised in re-survey No.169/6. OP(C)No.2760/2011 4 Resultantly this Original Petition is allowed and Ext.P6, order is set aside. Learned Munsiff, Tirur is directed to depute the very same Advocate Commissioner (with the assistance of the Surveyor) to identify plaint B schedule with reference to sale deed No.920 of 1998 and the prior documents if any relied by the petitioner as also the relevant survey records relating to plaint B schedule. It is made clear that this order does not in any way interfere with Ext.P2, report and plan. If the respondents want any additional matter (not covered by Ext.P2, report and plan) to be ascertained through the Advocate Commissioner it is open to them to file work memo before the learned Munsiff and the learned Munsiff shall pass appropriate orders on that work memo. After the report and plan are obtained as aforesaid, learned Munsiff shall decide the suit as provided under law taking into account the reports and plans and other evidence before him. THOMAS P.JOSEPH, Judge. cks