IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 OP(C).No. 3489 of 2011(O) ------------------------- OS.170/2009 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER -------------- MATHAI CHACKO,AGED 77 YEARS, S/O.MATHAI,PARAKKATTU THOPPIL VEEDU, ERAMATHOOR MURI ,THRIPERUMTHURA VILLAGE, CHENNITHALA,ALAPPUZHA DISTRICT. BY ADV. SMT.S.L.SYLAJA RESPONDENT: --------------- ITTYCHERIYA, AGED 60 YEARS,S/O.VARGHESE, THOPPIL VEEDU,ERAMATHOOR MURI, THRIPPERUMTHURA VILLAGE THRIPPERUMTHURA PANCHAYATH, CHENNITHALA, PIN 688001/ R1 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 3489 of 2011(O) ----------------------------------- APPENDIX ------------- PETITIONER(S) EXHIBITS ---------------------------- EXT.P1:- TRUE PHOTOCOPY OF THE ORDER DTD.7/9/2011 IN IA NO.495/2011 IN OS.NO.170/2009 OF THE MUNSIFF COURT, MAVELIKKARA EXT.P2:- TRUE COPY OF THE COMMISSION REPORT AND PLAN PREPARED AS PER ORDER IN IN IA NO.1614/2010 BY THE ADVOCATE COMMISSIONER AND SURVEYOR. RESPONDENTS' EXHIBITS : NIL ------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3489 of 2011 -------------------------------------- Dated this the 16th day of November, 2011. JUDGMENT Petitioner is the plaintiff in O.S.No.170 of 2009 of the court of learned Munsiff, Mavalikkara. Originally it was filed as one for a decree for prohibitory injunction to restrain the respondent from trespassing into the property and committing waste. Later a prayer for fixation of boundary was also incorporated, learned counsel submits. Respondent filed written statement disputing averments in the plaint and raising a counter claim for fixation of western boundary of his property. Learned Munsiff appointed a survey commission who submitted Ext.P2, report and plan. Petitioner filed I.A.No.495 of 2011 to set aside that report and plan which learned Munsiff dismissed by Ext.P1, order after recording evidence of the Advocate Commissioner and Surveyor as PWs 1 and 2. That order is under challenge. 2. It is contended by learned counsel that though in Ext.P2, report and plan the Advocate Commissioner and Surveyor have shown the property (allegedly) belonging to the respondent as HIJKL (as the counter claim property) as 7.40 Ares in re-survey No.387/7, respondent has no case that there was any deficiency in the property acquired by him. It is also contended by the learned counsel that Advocate Commissioner and the Surveyor were not correct in marking LHM plot – 8 sq. metres as the property of the respondent. Learned counsel has referred to me paragraph 17 of Ext.P1, order where there is OP(C)No.3489/2011 2 reference to counsel for respondent contending that plotting of LHM plot was a mistake committed by the Surveyor and that the said property belongs to the respondent. It is contended by the learned counsel from the evidence of the Advocate Commissioner (PW1) that title deeds of parties were not verified. In the circumstances, it was necessary that Ext.P2, report and plan are set aside or atleast remitted and the Advocate Commissioner is directed to make a fresh measurement with the assistance of the Surveyor, it is argued. 3. Learned counsel for respondent has resisted the contention. It is pointed out that on 06.02.2008 petitioner filed O.S.No.54 of 2008 for a decree for prohibitory injunction against respondent, respondent filed written statement on 04.03.2008, the case came up for trial in the list on 25.05.2009 and after recording evidence the case was posted on 29.05.2009 for hearing. At that time petitioner came with an application for withdrawal of the suit with permission to file a fresh suit and that application was allowed on 03.06.2009. In that order in paragraph 4, it is pointed out that there is dispute regarding boundary of the the properties but, still there is no prayer for fixation of boundary in the plaint, that is a formal defect in the suit and there are other sufficient grounds to allow petitioner to withdraw the suit and file a fresh suit and hence permission is granted. It is pointed out by the learned counsel that on 04.06.2009 petitioner filed the present suit, again with prayer for prohibitory injunction alone and it is later that was amended with a prayer for fixation of boundary. According to the learned counsel, averments in the present suit is to the effect that petitioner has absolute title and possession of 8 cents as per partition deed, later in the re- OP(C)No.3489/2011 3 survey the extent of property belonging to the petitioner was found to be 4.70 Ares. According to the learned counsel, if entitlement of petitioner as per partition deed is only 8 cents, it is not necessary to measure the property with reference to the title deed. Learned counsel contended that total extent of property petitioner and others had was only 26 cents out of which, 8 cents each towards the western portion were allotted to the petitioner and his brother and the remaining 10 cents was allotted to the predecessor-in-interest of the respondent from whom respondent acquired it. 4. The Advocate Commissioner has shown property belonging to the petitioner as FGHL in the plan with its extent as 4.70 Ares and falling in re- survey No.387/5. As aforesaid, property allegedly belonging to the respondent is marked as HIJKL having 7.40 Ares in re-survey No.387/7. The Advocate Commissioner has shown LH line as the boundary between the properties of petitioner and respondent. 5. Dispute concerns the LHM plot - 8 sq.metres area which according to the Commissioner and Surveyor forms part of property of respondent and now in the possession of petitioner. The disputed mango trees are situated in LHM plot. Now the question is whether set asiding of the order under challenge and remission of the report is required. 6. So far the plan and report are concerned, it is prepared with the assistance of the Surveyor. No error is pointed out in the measurement. What remained is whether properties ought have been measured with the documents OP(C)No.3489/2011 4 of title. Regarding that, I have observed a little above that so far as petitioner is concerned, his claim of title and possession as per partition deed is only for 8 cents and the claim for 4.70 Ares is based on the re-survey conducted later. If that be so, absence of measurement of property with reference to the documents of title is not fatal. But, the above observations need not be taken as a final verdict on the issues since learned Munsiff in paragraph 18 of Ext.P1, order stated that the challenge made to Ext.P2, report and plan could be considered and decided after analyzing the evidence admitted in the case (at the time of trial) and that right of petitioner to raise all contentions as against Ext.P2, report and plan is reserved. In otherwords, it is not as if right of petitioner to challenge Ext.P2, report and plan is foreclosed for ever by Ext.P1, order. In that view of the matter I do not find reason to interfere with Ext.P1, order. But I make it clear that in considering the challenge that petitioner might raise in the course of trial, the observations made by me above shall not stand in the way. With the above direction, this Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks