IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 WP(C).No. 27954 of 2007(C) -------------------------- OS.93/2000 of SUB COURT,KATTAPPANA .................... PETITIONERS: ---------------- 1. KHADEEJA BEEVI, W/O P.H.ABDUL RAHIM, PUTHUPARAMBIL, AZAD MANZIL, KUMILY KARA, KUMILY. 2. SUNIL A.RAHIM, S/O P.H.ABDUL RAHIM, AZAD MANZIL, KUMILY KARA, KUMILY. 3. SOUMYA A.RAHIM, D/O P.H.ABDUL RAHIM, AZAD MANZIL, KUMILY KARA, KUMILY. BY ADV. SRI.TITUS MANI SRI.S.SURAJ (PALATHANATHU) SRI.THOMAS ANTONY RESPONDENTS: ------------- 1. M.SAJITH, S/O P.H.ABDUL RAHIM, PUTHUPARAMBIL, ROSE DALE, KUMILY KARA, KUMILY. 2. P.H.MOHAMMED SALIM, S/O HASSAN RAWTHER, PUTHUPARAMBIL HOUSE, ROSE DALE, KUMILY KARA, KUMILY VILLAGE. BY ADV. SRI.P.K.MUHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT. P1 TRUE COPY OF THE ORDER DATED 26.6.07 IN O.S.93/00 OF THE SUB COURT, KATTAPPANA. EXT.P2 TRUE COPY OF THE COMMISSIONER'S PLAN AND REPORT. [ True copy ] P.A. to Judge. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 27954 OF 2007 = = = = = = = = = = = = = = = Dated this the 30th day of January, 2008. J U D G M E N T A vexed question regarding the extent and identification of property is to be decided in the civil litigation. The case of the plaintiff is that he has obtained the certificate of purchase, Ext.A3 whereby he is having an area of one acre and 50 cents of land. There has been assignment by the plaintiff in favour of the defendant and it is submitted that out of one acre and 50 cents he has only assigned one acre of land and therefore the 50 cents available under Ext.A3 is in his possession. 2. On the other hand the defendants would contend that whatever the plaintiff has obtained under Ext.A3 which has been measured at the time of execution of the document is only one acre and that has been transferred in favour of the defendants and so the plaintiff is not having an inch of property therein. So the whole question has to be decided W.P.C 27954 OF 2007 -:2:- on the fact what is the actual extent of property which the plaintiff has derived under Ext.A3 or any anterior document of title. The learned counsel for the writ petitioner submits before me that the Commissioner had gone wrong in measuring the property and that has created injustice to him. What the Commissioner has done in this case is as there is no dispute regarding the southern boundary of the whole property that was fixed at line AB and from point B the property was measured upto point E and then eastern side to the point F and thereafter towards south up to the point of A. Or in other words the entire property claimed by the parties is coming within the compact plot of ABCDEFHI. Now the property which is measured through the northern side on the basis of Exts.B10, B9 and B8 and the property is carved out, then the property covered under Ext.A3 will have only the extent of 93 cents and not one acre 50 cents. The learned counsel for the writ petitioner submits since the southern boundary is fixed and as measurements are available in the plan attached to Ext.X1 file, the Commissioner should have identified the property by measuring the property covered by W.P.C 27954 OF 2007 -:3:- Ext.A3 as per the side measurements given in the sketch appended to Ext.X1 file. 3. The question whether the measurements shown in the sketch appended to Ext.X1 file is correct or not is still a matter which has to be adjudicated and decided by the Court. In order to have a clear picture before finally taking up the matter for evidence I feel the Court can direct the Commissioner to do the work in two ways, one, to fix the southern boundary as fixed as AB then start to measure the property from south to north, then demarcate the property as it was done on the measurements relied upon by the parties and when it is done it is certain that there will be deficiency of land on the northern side. If the Commissioner has measured Exts.B10, B9, B8 and A2 etc. in accordance with law with the present sketch submitted then actual measurement starting from north end to the southern end is readily available. Then the property be measured and identified from the southern tip on the basis of Exts.A3, A1, B8, B9 and B10. It means the property be measured starting from southern end. If it is done then one will W.P.C 27954 OF 2007 -:4:- understand deficiency of total land available therein. Then a larger question arises which is the document that can be relied upon and which will prevail over the other. These are all matters where the parties have to let in evidence for a final adjudication of the civil dispute. I make it clear and pass an order of this nature only to enable the Court below as well as the parties to have two different plans with respect to the property, one measuring from the south and the other measuring from the northern end and then to analyze the whole matter in the light of the documents relied upon by the parties to resolve the dispute between the parties. I direct the Court below to direct the Commissioner to do the work in accordance with these directions. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-