IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 OP(C).No. 906 of 2010(O) ------------------------ AGAINST THE ORDER DATED 30/09/2010 IN IA.1230/2010 IN OS.363/2007 of MUNSIFF'S COURT, PARAVUR .................... PETITIONER (S): -------------------------- KUMARAN, S/O.PARAMAN, AGED 54, NJATTUVAIPARAMBIL, NANTHYATTUKUNNAM, PARAVUR. BY ADV. SRI.B.RAMACHANDRAN RESPONDENT(S): --------------------------- SANKU, S/O.PARAMAN, AGED 71, NJATTUVAIPARAMBIL, NANTHYATTUKUNNAM, PARAVUR - 682 186. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.906 of 2010 --------------------------------------- Dated this 29th day of November, 2010 JUDGMENT Plaintiff in O.S.No.363 of 2007 of the court of learned Munsiff, North Paravur is the petitioner before me challenging Ext.P9, order refusing to set aside Exts.P3 and P4, report and plan submitted by the Advocate Commissioner with the assistance of a Surveyor. Petitioner sued respondent for recovery of possession of plaint B schedule property. He claimed that A schedule property described in the plaint as 8.889 cents in survey No.229/15 was acquired by him as B schedule item in partition deed No.4685 of 2000. Plaint B schedule is a small strip of having a width of 12½ ft and length of 12½ ft towards the western portion of plaint A schedule which petitioner alleged, was trespassed upon by the respondent. Petitioner hence wanted recovery of possession of a portion of the property on the strength of title. Respondent claimed that as per the same partition deed he got 1.111 cents. Advocate Commissioner with the assistance of the Surveyor measured the property and submitted Exts.P3 and P4, report and plan. Petitioner filed Ext.P5, objection to Exts.P3 and P4, stating that on all sides of O.P(C).No.906 of 2010 : 2 : plaint A schedule Commissioner has left out about 10cms from measurement. On the same day petitioner filed Ext.P7, application to set aside Exts.P3 and P4 stating that there was no measurement of the property as per partition deed No.4685 of 2000. That application was opposed by respondent and learned Munsiff vide Ext.P9, order has dismissed the application. It is contended by learned counsel that Advocate Commissioner and Surveyor have not measured the property with reference to the partition deed. 2. I am unable to accept that argument. On going through the order it is seen that learned Munsiff has referred to the evidence of Advocate Commissioner as PW1 where he has stated that he measured the property with reference to partition deed also but of course there was slight difference in the measurement when compared to the measurements referred to in the partition deed. Commissioner and Surveyor on measurement found that properties are comprised in survey 226/15 and 226/16. Though in the partition deed the 8.889 cents allotted to the petitioner is described as comprised in 229/15 on measurement it was found to be 8.170cents in survey 229/15 and 1.170 cents in 229/16 which meant that the total extent on which petitioner is claiming right came to 9.340cents while the partition deed referred to only an extent of 8.889 cents. So far as O.P(C).No.906 of 2010 : 3 : entitlement of respondent is concerned, Advocate Commissioner and Surveyor found that the 1.111 cents referred to in the partition deed is in survey 229/15 but on measurement it was found to be in survey 229/16 and the extent was found to be 0.985cents. Commissioner has also stated that a portion of property belonging to the petitioner was seen encroached by the respondent (extent, to 0.560 cents). There was no difference in the boundary of the properties as reported by the Advocate Commissioner. What is revealed is only slight difference in the measurement from what the partition deed stated and the measurement at site. I have gone through Ext.P9, order and find that the court below has referred to the relevant aspects to hold that there is no necessity to set aside Exts.P3 and P4. I do not find reason to interfere. I make it clear that if otherwise petitioner is entitled, it is open to the petitioner to challenge the correctness of Ext.P9, order in the appeal that may be preferred against judgment and decree of the court below. This petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-