IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 427 of 2010(O)
1. N.P.JOHNY,AGED 70,NEELANKAVIL
... Petitioner
Vs
1. PRABHAKARAN,S/O.PUTHENPURAVEETIL
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/10/2010
O R D E R
THOMAS P.JOSEPH, J.
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O.P(C) No.427 of 2010
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Dated this the 22nd day of October, 2010
J U D G M E N T
Defendant in O.S. No.1354 of 2009 of the court of learned
Additional Munsiff-III, Thrissur is the petitioner before me. He is
defending a suit filed by the respondent-plaintiff for a decree for
prohibitory injunction against trespass into suit property and
commission of waste. According to the respondent the suit
property having specific boundaries on all sides as stated in the
plaint belonged to and is in his possession as per document
No.2459 of 2007. Respondent inter alia contended that
description of the property is not clear and that plaint does not
even say whether on any side of the suit property petitioner has
any property in his possession. Petitioner filed I.A. No.5227 of
2010 to appoint an Advocate Commissioner to measure the
property with the assistance of a Surveyor. That application was
dismissed by the learned Munsiff holding that suit is merely for
prohibitory injunction against trespass and commission of waste.
Exhibit P6 order is under challenge in this petition. Learned
counsel for petitioner contends that though it is styled as a suit for
injunction issue regarding title is also involved and measurement
O.P(C) No.427 of 2010
-: 2 :-
of the property is essential.
2. I find myself unable to give my assent to the
argument. The suit as framed is merely for prohibitory injunction
stating that suit property acquired by the respondent as per
document No.2459 of 2007 has specific boundaries on all four
sides. Exhibit P3, report and plan prepared by the Advocate
Commissioner also prima facie shows that. If description of the
property is not clear and it has no specific boundaries as
claimed by him, it goes to the disadvantage of respondent-
plaintiff. There is no reason why in a suit for injunction based on
possession, petitioner-defendant should go for a measurement of
the suit property as if it is a suit on title. I must also bear in
mind that going by the plaint schedule description no property
belonging to the petitioner lies adjacent to the suit property. In
the circumstances a measurement of property with the
assistance of Surveyor is not warranted. If petitioner has any
dispute regarding title claimed by respondent his remedy is
elsewhere. I do not find reason to interfere with Ext.P6, order.
Original Petition is dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv