IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 19360 of 2010(O) -------------------------- AGAINST THE ORDER IN IA.2737/2009 IN OS.174/2008 of MUNSIFF COURT, TIRUR .................... PETITIONERS: --------------- 1. DAMODARAN , S/O.VELUKUTTY MOOTHAT HOUSE VELAVANNOR AMSOM CHERAVANNOOR DESOM, P.O.PARAMMALANGADI, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676 551. 2. VASUNNI, S/O.MAYANDI MOOTHAT HOUSE VELAVANNOR AMSOM CHERAVANNOOR DESOM, P.O.PARAMMALANGADI, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676 551. 3. AYYAPPAN @ BALAN, S/O.THAMI KOLARATTIL HOUSE, IRINGAVOOR AMSOM DESOM IRINGAVOOR PO, TIRUR TALUK, PIN 676 523. BY ADV. SRI.T.KRISHNANUNNI, SENIOR ADVOCATE SRI.SAJU.S.A RESPONDENTS: --------------- 1. VASU, S/O. KUNJAKKAN AZHUVALAPPIL HOUSE, IRINGAVOOR AMSOM DESOM P.O.IRINGAVOOR, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676 523. 2. GANGADEVI, W/O.VASU D/O.CHATHUNNI, KONDETHAPARAMBIL HOUSE' IRINGAVOOR AMSOM DESOM P.O.IRINGAVOOR, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676 523. ADV. SRI.K.K.MOHAMED RAVUF FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19360 of 2010 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.174 OF 2008 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DTD. 16.06.2008 EXHIBIT P2 : WRITTEN STATEMENT FILED BY the DEFENDANTS IN O.S.No.174 OF 2008 ON THE FILE OF THE COURT OF MUNSIFF OF TIRUR DTD. 21.11.2008 EXHIBIT P3 : COMMISSION REPORT IN O.S.No.174 OF 2008 BEFORE the TRIAL COURT DTD. 23.06.2008 EXHIBIT P4 : I.A. 2737 OF 2009 IN O.S.No.174 OF 2008 OF MUNSIFF COURT, TIRUR DTD. 04.11.2009 EXHIBIT P5 : ORDER OF THE COURT OF MUNSIFF, TIRUR IN I.A 2737 OF 2009 IN O.S.No.174 OF 2008 ON THE FILE DTD. 05.01.2010. RESPONDENTS' EXHIBITS: NIL True Copy P. A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.19360 of 2010 --------------------------------------- Dated this 21st day of July, 2010 JUDGMENT This writ petition is in challenge of order on I.A.No.2737 of 2009 in O.S.No.174 of 2008 of the court of learned Munsiff, Tirur. That is a suit filed by respondents for relief of injunction to restrain petitioners from interfering with their possession and enjoyment of the suit property, trespassing into the said property, constructing new road or alternating existing boundaries of the said property. Along with the suit respondents filed an application for appointment of a Commission. Commissioner in the presence of petitioner Nos.1 and 3 inspected property and submitted Ext.P3, report. Petitioners filed written statement contending that respondents had trespassed into a portion of the existing road and annexed that portion also into their property. Petitioners filed I.A.No.2737 of 2009 to remit the Commissioner's report for further inspection. They prayed that properties of respondents and adjascent property on the immediate west with reference to their title deeds be measured to ascertain the extent of property belonging to the respondents and others. That application was dismissed by learned Munsiff vide Ext.P5, order. W.P.C.No.19360 of 2010 : 2 : Learned counsel for petitioners contend that to identify the suit property it is necessary to measure the property as aforesaid with the assistance of a Surveyor. Learned counsel for respondents contend that this is a simple suit for injunction based on possession claimed by the respondents and against attempt to form road through the suit property. Learned counsel has invited my attention to Ext.P4, report of the Advocate Commissioner. 2. In Ext.P4, Commissioner has stated that there is presently a road having width of 4 feet along the eastern side of the suit property. Commissioner has also reported about some spade work having being done towards north-eastern portion of the suit property. Commissioner in paragraph 7 has reported that he could find shrubs on the eastern and northern boundary of suit property. 3. According to the petitioners, it is a case of respondents recently trespassing into the road and annexing that portion of the road to their property but, what is stated in the written statement is that if the disputed way is formed into a road local people will be benefited since the distance to Tirur town would be reduced by about 5kms. Report of Advocate Commissioner shows that as it now stands, there is a fixed boundary on the east and north of suit property and the disputed W.P.C.No.19360 of 2010 : 3 : way on the east is having a width of 4 feet. In the circumstances as the things now stands and particularly as petitioners have not prayed for any relief against respondents such as recovery of possession or mandatory injunction directing the respondents to remove that portion of the road which is allegedly annexed by the respondents it is not necessary to go for a survey commission as requested by petitioner. As things now stand I do not find reason to interfere with the impugned order. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-