IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 37474 of 2008(J) -------------------------------------- OS.336/2007 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): --------------------- 1. ABRAHAM, AGED 70 YEARS, RETIRED REVENUE INSPECTOR, PARAKKASSERIL (H), HOSPITAL JUNCTION, PIRAVOM. 2. JIM ABRAHAM, AGED 34 YEARS, S/O.ABRAHAM, PARAKKASSERIL HOUSE HOSPITAL JUNCTION, PIRAVOM. 3. CHACKO, AGED 73 YEARS, S/O.MATHAI RESIDING AT AKASALAYIL HOUSE, PIRAVOM. BY ADV. MR.BIJU ABRAHAM RESPONDENT(S): ----------------------- JANCY SIMON, AGED 42 YEARS, W/O.SAJUMON P.ALEX, PADICKAPARAMBIL HOUSE, PIRAVOM, MUVATTUPUZHA TALUK, ERNAKULAM. BY ADV. MR.VARGHESE C.KURIAKOSE . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 37474/2008-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.336/2007 ON THE FILES OF MUNSIFF COURT MUVATTUPUZHA. EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.336/2007 ON THE FILES OF MUNSIFF COURT, MUVATTUPUZHA. EXT.P3: COPY OF THE 1ST COMMISSION REPORT DATED 18/08/2007 IN I.A.NO.2365/2007 IN O.S.336/2007 ON THE FILES OF MUNSIFF COURT, MUVATTUPUZHA. EXT.P4: COPY OF THE COMMISSION REPORT 06/09/2007 WITH THE SKETCH IN I.A. NO.2416/2007 IN O.S.336/2007 ON THE FILES OF MUSIFF COURT, MUVATTUPUZHA. EXT.P5: COPY OF THE ORDER IN I.A.2819/2007 IN O.S.336/2007 DATED 11/10/2007 ON THE FILES OF MUSIFF COURT, MUVATTUPUZHA. EXT.P6: COPY OF THE WORK MEMO SUBMITTED BY THE DEFENDANTS TO THE ADVOCATE COMMISSIONER. EXT.P7: COPY OF THE INTERIM REPORT SUBMITTED BY ADVOCATE COMMISSIONER DATED 16/06/2008 IN O.S.336/2007 ON THE FILES OF MUNSIFF COURT, MUVATTUPZHA. EXT.P8: COPY OF THE I.A. NO.1980/2008 IN O.S.336/2007 ON THE FILES OF MUNSIFF COURT, MUVATTUPUZHA. EXT.P9: COPY OF THE OBJECTION FILED BY THE DEFENDANTS IN I.A.1980/2008 IN O.S.336/2007 ON THE FILES OF MUNSIFF COURT, MUVATTUPZHA. EXT.P10: COPY OF THE I.A. NO.2111/2008 IN O.S.336/2007 ON THE FILES OF MUNSIFF COURT, MUVATTUPUZHA. EXT.P11: COPY OF THE SURVEY SKETCH AND DETAILS FURNISHED BY THE RDO MUVATTUPUZHA DATED 07/08/2007 IN RESPECT OF THE SKETCH AND DETAILS OF THE PROPERTY INTENDED TO BE ACQUIRED IN DISPUTE. EXT.P12: COPY OF THE OBJECTION FILED BY THE PLAINTIFF IN I.A. NO.2111/2008 IN O.S.336/2007 DATED 05/07/2008 ON THE FILES OF MUSIFF COURT, MUVATTUPUZHA. EXT.P13: COPY OF THE LETTER DATED 24/03/2008 OF THE RDO MUVATTUPUZHA. EXT.P14: COPY OF THE ORDER DATED 16/10/2008 IN I.A. NO.1980/2008 AND 2111/2008 IN O.S.336/2007 ON THE FILES OF MUNSIFF COURT, MUVATTUPUZHA. EXT.P15: COPY OF THE COMMUNICATION DATED 18/11/2008 FROM THE ADDITIONAL SECRETARY TO GOVERNMENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.37474 OF 2008 -------------------------- Dated this the 16th day of July 2009 ------------------------------------- JUDGMENT Writ petition is filed seeking the following reliefs. i) A writ of mandamus or any other appropriate writ, order or directions setting aside exhibit P14 order of the court below by holding that the same is improper since the earlier orders passed by the court in respect of the inspection by the commission is not annulled or modified. ii) A writ of mandamus or any other appropriate writ, order or directions commanding the court below to obtain a commission report on the basis of directions given prior to exhibit P14 based on the work memo submitted by the defendants. W.P.(C).No.37474 OF 2008 2 iii) Any other appropriate writ, order or directions as this Hon'ble court deem fit on the fact and in the circumstances of the case and allow this petition with cost. 2. Petitioners are the defendants in O.S 336/2007 on the file of the Munsiff Court, Moovattupuzha and the respondent is the plaintiff. Suit is one for perpetual prohibitory injunction. Plaintiff applied for appointment of an advocate commissioner to conduct a local inspection and measure out and identify the suit property with the assistance of a surveyor, which was allowed. The commission filed an interim report that it is not possible to identify the property with reference to the extent shown in the document consisting of nearly more than five acres. A survey measurement was sought by the plaintiff and while the commissioner proceeded with the execution, the plaintiff and also the defendants moved applications before the court. The plaintiff W.P.(C).No.37474 OF 2008 3 wanted to identity his property with reference to his title deeds and also that of an adjacent property owner when survey measurement is conducted, and the defendant objecting to that canvassed for measuring the property with reference to a plan prepared in land acquisition proceedings. The learned Munsiff after considering the application and objections raised directed the defendants to answer some specific questions, whether the plan relied by him which was stated as having been prepared in a land acquisition proceeding has become final with the acquisition proceedings completed. It was reported that the land acquisition proceedings have not become final. After considering the disputes raised over the questions how the measurement has to be conducted and hearing the counsel on both sides, the learned Munsiff negatived the objections of the defendant and allowed the application moved by the plaintiff for identifying and fixing the boundaries of his properties with reference to his title deeds when W.P.(C).No.37474 OF 2008 4 survey measurements are made. Ext.P14 is the copy of the order passed by the learned Munsiff. Propriety and correctness of that order is impeached in the present writ petition by the petitioners/defendants invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioners. Though notice was served on the respondent, he has not entered appearance. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P14 order impugned in the petition, with other materials tendered, I find there is no impropriety or illegality in the order passed by the learned Munsiff directing for identification of the property of the plaintiff with reference to his title deeds. The plaintiff has applied for a decree of perpetual prohibitory injunction, and decree thereof can be granted only W.P.(C).No.37474 OF 2008 5 if the plaint properties are identified. Whether such identification is possible or not with reference to his title deeds on survey measurements is a matter to be considered in the trial of the suit. If at all the defendants have any objections thereof, they will get sufficient opportunity to raise such objection after a commission report is filed by the commissioner after measurement of the property. The writ petition is devoid of any merit and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv