IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 WP(C).No. 24744 of 2010(O) -------------------------- IA NO.973/2010 IN OS.21/2009 of MUNSIFF COURT,PARAPPANANGADI .................... PETITIONER(S): 1 ---------------- THELATH MATHAVANGATTIL RAVIKUMAR S/O.BHAGEERATHI AMMA, PO.PARIYAPURAM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): --------------- 1. THELATH MATHAVANGATTIL AMMINI AMMA W/O.MADHAVAN NAIR, PO,.PARIYAPURAM, TIRUR TALUK,MALAPPURAM DISTRICT. 2. SWATHANTHRAKUMARI, D/O.AMMINI AMMA,THELATH MATHAVANGATTIL, PO,PARIYAPURAM, TIRUR TALUK,MALAPPURAM DISTRICT. 3. PADMINI, D/O.AMMINI AMMA,THELATH MATHAVANGATTIL, PO,PARIYAPURAM, TIRUR TALUK,MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.24744 of 2010 -------------------------------------- Dated this the 12th day of August, 2010. JUDGMENT Defendant in O.S.No.21 of 2009 of the court of learned Munsiff, Parappanangadi is aggrieved by order dated 22.06.2010 on Ext.P3, I.A.No.973 of 2010 deputing an Advocate Commissioner to identify the suit property and for allied matters. According to the petitioner/defendant it was absolutely not necessary to depute an Advocate Commissioner to identify the property since identity is not in dispute. According to the petitioner, attempt of the respondents is to divert the real issue involved in the suit that petitioner being a co-owner of the property, respondents could not seek any injunction against him in the way prayed for. 2. Suit as instituted is one for prohibitory injunction to restrain petitioner from constructing permanent way along the suit property through which respondents allege, petitioner was given a temporary permission to gain access to his property adjoining the suit property and committing waste in the suit property. Petitioner contended that he is a co-owner of the property and hence, respondents are not entitled to the injunction prayed for. He also resisted the suit on various other grounds. Respondents filed I.A.No.973 of 2010 to appoint an Advocate Commissioner to identify the suit property and for other matters. That application was objected on the ground which I have stated above. Learned Munsiff was not impressed by the objection and allowed the WP(C) No.24744/2010 2 application. That order is under challenge. Learned counsel for petitioner contends that apart from the fact that there is no dispute regarding identity of property, there is already a report and sketch in the case which identified the suit property and hence the order under challenge cannot be sustained. 3. There can be no doubt that it was well within the power of court below to appoint an Advocate Commissioner and hence it cannot be said that court below transgressed its limits of power in appointing an Advocate Commissioner. Nor does the order affect any right of petitioner in that notwithstanding whatever report Advocate Commissioner submits it is open to the petitioner to contend, as stated in his written statement that he being a co- owner no injunction as prayed for could be granted. I must also bear in mind that even in a suit for injunction it is appropriate to have a properly prepared plan of the property identifying it so that, decree that may be granted is specific and that will avoid possible disputes in execution. No doubt executing court has also the power to identify the property. Question of identification of property is not a matter ordinarily to be left to the executing court to decide. No doubt petitioner did not dispute identity of property. Question is not whether petitioner has disputed identity but whether respondents who are claiming injunction have identified the property so that an effective decree could be passed. WP(C) No.24744/2010 3 4. I have gone through copy of report and sketch learned counsel has produced in this Writ Petition. The Advocate Commissioner has not stated about boundaries of the suit property and property admittedly belonging to the petitioner. Advocate Commissioner has only shown the pathway which according to the respondents was permitted to be used by the petitioner temporarily for access to his property. The sketch also does not show any measurement of the suit property. In that situation it may not be possible to identify the suit property based on the said report and sketch alone. I do not find reason to interfere with the order on Ext.P3, application. But it is made clear that if the petitioner wants any matter to be ascertained through the Advocate Commissioner it is open to him to file work memo in the court below and seek appropriate direction to the Commissioner. If any additional work is required it is open to the court below, if such a course is warranted to direct petitioner to pay a portion of the batta payable to the Advocate Commissioner. I also make it clear that court below shall consider (at the final stage) contention raised by petitioner that he being a co-owner of the suit property respondents are not entitled to the injunction prayed for. With the above directions Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks