IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 WP(C).NO. 24022 OF 2010(O) ----------------------------------------- AGAINST THE ORDER IN IA 890/2010 IN OS.133/1996 OF MUNSIFF COURT, CHITTUR .................... PETITIONER(S): ---------------------- NARAYANI W/O.LATE KRISHNAN, AGED 85 YEARS, KANNIMARI, PATTANCHERRY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 532. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): ------------------------ 1. PONNUKUTTY W/O.LATE KESAVAN, RESIDING AT PATTIKULAM, PATTENCHERRY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 532. 2. PUNNARIJAKSHAN, S/O.PONNUKUTTY, RESIDING AT PATTIKULAM, PATTENCHERRY VILLAGE CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 532. 3. RAVINDRANATHAN, S/O.PONNUKUTTY, RESIDING AT PATTIKULAM, PATTENCHERRY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 532. 4. JAYAKRISHNAN, S/O.PONNUKUTTY, RESIDING AT PATTIKULAM, PATTENCHERRY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 532. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.24022 of 2010 ==================================== Dated this the 02nd day of August, 2010 J U D G M E N T Petitioner is aggrieved by Ext.P3, order dated 4.6.2010 on I.A.No.890 of in O.S.No.133 of 1996 of the court of learned Munsiff, Chittur. That is a suit filed by petitioner in the year 1996 for a decree for prohibitory injunction and the suit ended in dismissal observing that real dispute is regarding boundary between plaint A and B schedule properties. Petitioner took up the matter in appeal and got a remand with opportunity to amend the plaint as one for fixation of boundary. Accordingly plaint was amended incorporating a prayer for fixation of boundary. Advocate Commissioner inspected the property and submitted report and plan on 9.6.2008. Respondents filed I.A.No.1487 of 2008 to remit the report and plan. That application was allowed and Advocate Commissioner again inspected the property and submitted fresh report and plan. Thereon suit was included in the list for trial on 15.01.2010. Petitioner remained absent and counsel represented that there is no oral evidence. Accordingly documents on the side W.P(C) No.24022 of 2010 -: 2 :- of petitioner were marked and the case was posted for evidence of respondents on 19.01.2010. That day petitioner remained absent and counsel reported no instructions. Learned Munsiff dismissed the suit on 21.1.2010 for default. Later it was restored to file on the request of petitioner vide I.A.No.298 of 2010. It is thereafter that petitioner filed I.A. No.890 for fresh commission stating that she had sold a portion of plaint A schedule in the year 2001 and hence eastern boundary of plaint A schedule is to be demarcated. That application was dismissed by the impugned order. Learned counsel states that petitioner is aged 85 years and that to determine the real dispute it is necessary to measure the property she has assigned. On hearing counsel for petitioner and going through the order under challenge I am not persuaded to think that at this stage it is necessary to depute an Advocate Commissioner for fresh division in the lines requested by petitioner in I.A.No.890 of 2010. First of all there is no case of any dispute between petitioner and her assignee nor is the assignee a party to the suit. Hence intere se dispute if any, between petitioner and her assignee is not a matter which the court below is required to adjudicate in the present suit. If petitioner has any objection regarding the report and plan on record as to the W.P(C) No.24022 of 2010 -: 3 :- identification of plaint A and B schedules it is for her to work out her remedy at appropriate stage. Having gone through the order under challenge I do not find reason to interfere with the same. If at all petitioner has any dispute in respect of any portion of plaint A schedule assigned by her it is open to her to work out her remedy by way of separate suit against the assignee if petitioner is otherwise entitled to such a course. Writ Petition is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv