IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 5253 of 2010(O) ------------------------- OS.79/2008 of MUNSIFF COURT, PARAVOOR .................... PETITIONER(S): --------------- 1. E.P.RAFI VYDYAR, AGED 78, S/O.PAILY, ERATHARA HOUSE, KAITHARAM MURI, KOTTUVALLY VILLAGE PARAVUR TALUK. 2. K.K.SREENIVASAN, AGED 68, S/O.KOCHITTYA, KORUTHUMMATTU HOUSE, KAITHARAM MURI, KOTTUVALLY VILLAGE, PARAVUR TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): --------------- 1. ST.MARYS IMMACULATE CHURCH, KAITHARAM, KOTTUVALLY REP.BY VIKAR FR.PAUL KACHAPPILLY. 2. PAILY GEORGE, ELAMKUNNUAPPUZHA, KAITHARAM MURI, KOTTUVALLY VILLAGE, TRUSTEE ST.MARYS IMMACULATE CHURCH. 3. POULOSE GEORGE, KOORAN HOUSE, KAITHARAM MURI, KOTTUVALLY VILLAGE, TRUSTEE ST.MARYS IMMACULATE CHURCH. ADV. SRI.JIMMY JOHN VELLANIKARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.5253/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS 79/2008 OF MUNSIFF'S COURT, NORTH PARAVUR DATED 5.2.2008 EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY RESPONDENTS DATED 1.4.2008 EXT.P3 TRUE COPY OF COMMISSION REPORT IN OS 79/2008 DATED 14.2.2008 EXT.P4 TRUE COPY OF SKETCH ATTACHED TO EXT.P3 EXT.P5 TRUE COPY OF COMMISSION APPLICATION, IA NO.701/09 FILED BY PETITIONERS IN EXT.P1 SUIT DATED 18.3.2009 EXT.P6 TRUE COPY OF OBJECTION FILED TO EXT.P5 BY ESPONDENTS DATED 28.5.2006 EXT.P7 TRUE COPY OF ORDER IN EXT.P5 PETITION PASSED BY THE LOWER COURT DATED 7.10.2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.5253 of 2010 -------------------------------------- Dated this the 18th day of May, 2010. JUDGMENT Petitioners who are plaintiffs in O.S.No.79 of 2008 of the court of learned Munsiff, North Paravur have come to this Court seeking invocation of its jurisdiction under Article 227 of the Constitution to quash Ext.P7, order passed by learned Munsiff rejecting the application for issue of commission to measure the property of respondents. According to the petitioners, there was a way in existence along southern side of the property of respondents and proceeding towards further east and west having a width of four metres and in the course of time respondents encroached into a portion of the said way described in plaint B schedule reducing its width to two metres. Petitioners sought for a decree for fixation of the southern boundary of plaint A schedule properties belonging to the respondents (obviously for the purpose of fixing the northern boundary of the disputed four metre wide way) and for other consequential reliefs. Immediately after institution of the suit an Advocate Commissioner inspected the property and submitted report and sketch. Thereafter, petitioners filed Ext.P5, application for issue of a commission to measure the property of respondents (plaint A schedule) and to fix its southern boundary. That application was opposed by respondents vide Ext.P6, counter. Learned Munsiff after considering the objection dismissed the application as per Ext.P7. That order is challenged in this proceeding. Learned counsel for petitioners submitted that for a fair and just WP(C) No.5253 of 2010 2 disposal of the suit and to resolve the controversy between the parties it is necessary that plaint A schedule property covered by documents of title relied on by respondents is measured and its southern boundary is fixed so that, northern boundary of the way which according to the petitioners had a width of four metres could be ascertained. Learned counsel for respondents contended that suit is not maintainable since going by the averments in the plaint allegation is as if the disputed way is a public way but, there is no leave or publication under Order 1 Rule 8 of the Code of Civil Procedure (for short, “the Code”). Yet another contention advanced is that the allegation of trespass is not correct which is revealed from the averments in paragraph Nos.4 and 5 of the plaint itself. 2. So far as the publication under Order 1 Rule 8 of the Code is concerned, it is open to the trial court to consider the maintainability of the suit for want of such publication if such a course is necessary and, the provisions of the Code informs that the leave and publication under Order 1 Rule 8 of the Code can be applied for and obtained at any time during the course of trial, if necessary at the appellate stage also. Therefore, the mere fact that by now no such leave has been obtained or publication made need not deter this Court to interfere with Ext.P7 order which is under challenge in this proceeding. I leave the contention of respondents regarding maintainability of the suit for consideration of the trial court at the appropriate stage if it arises from pleadings. 3. Going by paragraph Nos.4 and 5 of the plaint, I am unable to think WP(C) No.5253 of 2010 3 that there is no allegation of trespass. What I find from paragraph No.4 is that according to the petitioners, there was trespass into the disputed way at the hands of the respondents reducing width of way to two metres and when the matter was complained to the Vicar of respondent No.1 he had undertaken to surrender two metres for the purpose of widening the road when the rest of property holders did so. Going by the averments in paragraph Nos.4 and 5 of the plaint I am able to discern the allegation that respondents have trespassed into a portion of the way which according to the petitioners originally had a width of four metres. Now what remained for consideration is whether learned Munsiff is justified in dismissing Ext.P5, application for issue of a commission for measurement of the property of respondents. In the plaint, 'A' relief prayed for is for fixation of southern boundary of the property belonging to the respondents as per documents of title referred to therein which according to the petitioners is sufficient to identify northern boundary of disputed way having width of four metres. It is for that purpose that Ext.P5, application has been preferred. I find from Ext.P6, counter that there was no objection for the respondents to measure property belonging to respondent No.1 as seen from paragraph No.1 of Ext.P6. Inspite of that learned Munsiff in Ext.P7, order states that petitioners do not want to fix the boundary of their property, the prayer in this petition is to measure the entire property of respondents and to report about measurement of the property of respondents alone. I am afraid that the observation made by the learned Munsiff is misconceived in that petitioners did not want either in the plaint or in Ext.P5, application to measure their property since the same is not WP(C) No.5253 of 2010 4 involved in the present litigation. In the circumstances and in view of the contentions made out before me I am persuaded to think that Ext.P7 is not legal or proper. Ext.P5, application is liable to be allowed. Resultantly this Writ Petition is allowed. Ext.P7, order is set aside and Ext.P5, application will stand allowed. Court below shall appoint a Commissioner and Surveyor for measurement of the properties. I make it clear that it will be open to the respondents if they are so advised, to file work memo in the court below before the Advocate Commissioner conducts inspection in case they wanted to ascertain through the commissioner any matter relevant and necessary for the disposal of the case. In case any work memo is filed learned Munsiff shall decide which all matters are relevant for consideration and issue direction to the Commissioner to ascertain those matters. The batta payable to the Commissioner and Surveyor (if any) shall be fixed by the learned Munsiff. THOMAS P.JOSEPH, Judge. cks