IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 OP(C).No. 2501 of 2011(O) ------------------------- AGAINST THE ORDER DATED 30/03/2011 IN IA 263/2011 IN OS.122/2009 of MUNSIFF'S COURT, HOSDURG .................... PETITIONERS/DEFENDANTS: --------------------------------------------- 1. KALATHIL SAROJINI, W/O. LATE RAGHAVAN, RESIDING AT NEELAYIL, PEROLE VILLAGE OF HOSDURG TALUK, KASARGOD DISTRICT. 2. KALATHIL DINESHAN, S/O. LATE RAGHAVAN, RESIDING AT NEELAYI, PEROLE VILLAGE OF HOSDURG TALUK, KASARGOD DISTRICT. BY ADVS. SRI.SURESH KUMAR KODOTH, SRI.V.R.REKESH, SRI.BINU GEORGE. RESPONDENT(S): PLAINTIFF: --------------------------------------------- VIJAYAN.P.P., S/O. KUNHAMBU, RESIDING AT NEELAYI,PEROLE VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT-671 121. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2501/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.122/2009 BEFORE THE MUNSIFF COURT, HOSDURG. P2: COPY OF THE REPORT AND PLAN FILED BY THE COMMISSIONER. P3: COPY OF THE APPLICATION SUPPORTED BY AFFIDAVIT. P4: COPY OF THE ORDER DTD. 30/03/2011 OF THE MUNSIFF COURT,HOSDURG. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2501 of 2011 --------------------------------------- Dated this 02nd day of August, 2011 JUDGMENT petitioners are the defendants in O.S.No.122 of 2009 of the Court of learned Munsiff, Hosdurg challenging Ext.P4, order on I.A.No.263 of 2011. Petitioners wanted to remit Ext.P2, report and plan to the Advocate Commissioner for fresh measurement. The main contention raised is that Commissioner has not included EDJI line in Ext.P2, plan and hence identification made by the Advocate Commissioner is not correct. It is also contended that Commissioner has omitted to mention the mud ridge reported in Ext.P2, report in the plan. 2. Respondents filed the suit for a decree for prohibitory injunction to restrain petitioners from trespassing into the plaint B schedule or taking possession thereof. Petitioners denied that respondent has title and possession of plaint B schedule. Advocate Commissioner has reported in Ext.P2 that property of respondent is situated on the north-west of plaint B schedule and on the west of the property of first petitioner. Commissioner also reported that there is no demarcating boundary to separate property of respondent with plaint B schedule but Commissioner found on the southern side of plaint B schedule a mud ridge on IJ O.P(C).No.2501 of 2011 -: 2 :- line. 3. So far as identification in the way claimed by petitioners is concerned, I must bear in mind that the suit is merely for prohibitory injunction where the crucial question is whether respondent is in possession of the suit property. Petitioners have not made any counter claim seeking relief based on their title. The commissioner has shown plaint B schedule as EDJI plot and boundary between the property admittedly belonging to the petitioner and plaint B schedule as IJ line. Learned Munsiff has observed in Ext.P4, order that Commissioner has identified the suit property with the plaint, documents and other records. She has also identified the property of petitioners by referring to the photocopy of registered Will No.25 of 1985. 4. It is seen from Ext.P1, report that petitioner had filed work memo and based on that, Advocate Commissioner has identified the property. No attempt was made to examine the Advocate Commissioner or Surveyor to show that there was any deficiency in the report and plan. Petitioners have the opportunity to challenge the report and plan in the course of trial. In the circumstance, there is no reason to interfere. This original petition is dismissed. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-