IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 OP(C).No. 34 of 2010(O) ----------------------- AGAINST THE ORDER IN IA.1032/2010 IN OS.431/2009 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONER (S): ---------------------------- ANANTHA MENON, S/O.AMMALU NETHIAR, MENAKSHI VIHAR, SASTHA NAGAR, AKATHETHARA AMSOM, PALAKKAD TALUK. BY ADVS. SRI.S.M.UNNIKRISHNAN, SRI.U.BALAGANGADHARAN. RESPONDENT(S): --------------------------- ANNAPOORNA, W/O.RAVEENDRAN, ASHTAPATHI, SASTHA NAGAR, AKATHETHARA AMSOM, PALAKKAD-670 674. BY ADVS. SRI.T.M.SUNIL, SMT.S.CHITHRA. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C)NO.34/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PORTION OF THE DECREE IN O.S.NO.6/74 ON THE FILE OF MUNSIFF COURT, PALAKKAD SHOWING THE MEASUREMENTS. P2: COPY OF THE PLAINT IN O.S.431/2009 ON THE FILE OF MUNSIFF'S COURT, PALAKKAD. P3: COPY OF THE WORK MEMO DTD. 16/09/2009. P4: COPY OF THE INTERIM REPORT DTD. 3/10/2009. P5: COPY OF THE I.A.DTD. 4/01/2010. P6: COPY OF THE 2ND INTERIM REPORT DTD. 19/03/2010 OF THE ADVOCATE COMMISSIONER. P7: COPY OF THE I.A.1032/10 DTD. 31/03/2010. P8: COPY OF THE ORDER IN I.A.1032/10 IN O.S.431/09 DTD. 7/08/10. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.34 of 2010 ==================================== Dated this the 04th day of October, 2010 J U D G M E N T Respondent appears through counsel. Heard counsel on both sides. 2. Plaintiff in O.S. No. 431 of 2009 of the court of learned Munsiff, Palakkad is the petitioner before me. That is a suit for recovery of possession laid against respondent-defendant. Petitioner relies on Ext.P1, partition deed to substantiate his claim over the property. An Advocate Commissioner was appointed to identify the property with the assistance of the Village Officer. According to the petitioner he had filed Ext.P3, work memo and the property was measured twice. Petitioner filed Ext.P7 to set aside Ext.P6, report. That application was dismissed as per the impugned order holding that question raised by the petitioner can be considered during trial. That order is under challenge in this Writ Petition. Learned counsel contends that going by the interim report the entire property was not measured. Learned counsel has given me a copy of the final report dated 02.07.2010 submitted O.P(C) No.34 of 2010 -: 2 :- by the Advocate Commissioner (subsequent to Ext.P7) wherein also it is stated that Commissioner was not able to measure the entire property allegedly on account of non-co-operation of petitioner. Learned counsel states that unless property is properly measured no effective decree could be passed since the decree sought for is recovery of possession on the strength of title. Learned counsel for respondent contends that even as per report of the Advocate Commissioner petitioner is in possession of more extent of land than scheduled in the plaint and hence there could be no valid grievance for the petitioner. 3. Learned Munsiff has observed that as per the report and plan submitted by the Advocate Commissioner it would appear that there is no third Tak as contended by petitioner in the plaint and that at any rate property has been measured (except the tak which petitioner says, was not measured) and that measurement revealed that petitioner is in possession of more extent of land than his entitlement as per his document of title. Learned Munsiff has observed that acceptability of the report of the Advocate Commissioner is a matter to be decided in evidence and that whether it is the side measurement or the boundary that should prevail is also a matter to be decided after trial. Learned O.P(C) No.34 of 2010 -: 3 :- Munsiff also observed that petitioner can prove at the time of trial that he has right over the disputed portion of the property as shown in the existing report and plan. 4. It is pointed out by learned Munsiff that report of the Advocate Commissioner is not conclusive piece of evidence and that petitioner, during the course of trial can prove his title and possession over the disputed area. I must also bear in mind that neither the Commissioner nor the Surveyor was examined on Ext.P7, application. Merely because some objections are raised to the report cannot mean that the report and plan are to be set aside. Objection raised by petitioner is that particulars pointed out by the Advocate Commissioner will not substantiate his case. As rightly pointed out petitioner can very well prove his title and possession over the disputed portion. In the circumstances I do not find reason to interfere with the impugned order. Resultantly, without prejudice to that right of petitioner stated in the impugned order, this Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv