IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 118 of 2010(O)
1. P.R.SREEDEVI, W/O.GANGADHARAN NAIR,
... Petitioner
2. GANGADHARAN, S/O.KRISHNAN NAIR,
Vs
1. SMT.SUSEELA ALIAS SULEELAMMA,
... Respondent
For Petitioner :DR.V.N.SANKARJEE
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/09/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.118 of 2010
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Dated this 30th day of September, 2010
JUDGMENT
This original petition is in challenge of Ext.P13, order
refusing to set aside reports and plans submitted by the Advocate
Commissioner and consequent dismissal of Ext.P11, application.
Petitioners filed O.S.No.370 of 2001 in the court of learned
Additional Munsiff, Cherthala for a decree for prohibitory
injunction to restrain respondents from trespassing into the
property described in that suit. Respondents in response filed
O.S.No.475 of 2010 in the same court seeking a declaration of
right and for prohibitory injunction. There is an order to try the
suits jointly. In both the suits, respective plaintiffs filed
applications to appoint Surveyor and Commissioner to identify
the properties and court appointed an Advocate Commissioner to
inspect the properties with the assistance of Taluk Surveyor.
Later, learned Munsiff removed the Taluk Surveyor and
appointed a retired Surveyor to assist the Advocate
Commissioner. After identification of properties by measurement
as the Advocate Commissioner would say, Exts.P8 and P10
reports along with plans are produced by the Advocate
O.P(C).No.118 of 2010
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Commissioner. Then came Ext.P11, application by petitioner to
set aside those reports and plans. Various allegations are made
in Ext.P11, application including that the Advocate Commissioner
has purposely helped the respondents who filed O.S.No.475 of
2001. Yet another objection is that there is no proper
identification of the property and that even the plans submitted
by Advocate Commissioner do not tally. Learned Munsiff found
against the contentions and Ext.P11, application was dismissed
by Ext.P13, order. Learned counsel asserts that Exts.P8 and P10,
reports and plans are liable to be set aside or remitted to the
Advocate Commissioner for fresh identification. Learned counsel
has asserted the allegations in Ext.P11, application before me.
2. I have gone through the records and Ext.P13, order.
It is seen that learned Munsiff has referred to each objection
raised by petitioners and found that the objections are not
tenable. There is reference to identification of properties as
claimed by the parties with reference to the documents of title.
One objection raised was that property belonging to one
Makayiran Sasi (who is not a party to the proceeding) was not
ascertained. But the Advocate Commissioner reported that
relevant documents were not furnished by the petitioners though,
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petitioners have a contention that it was actually applied.
Learned Munsiff has observed that at any rate those documents
are not produced in court (either along with Ext.P11 or before
that). Learned Munsiff has also observed that petitioners have
not examined the Advocate Commissioner or Surveyor in support
of their contentions, the reports and plans are not accepted.
Learned counsel states that the witness schedule was filed in the
court but, that was not taken into account by the learned Munsiff.
3. As I stated at the beginning, petitioners wanted a
decree for prohibitory injunction in respect of the property
scheduled in O.S.No.370 of 2001 obviously on the premise that
they are in possession of the said property. In suits for injunction
based on possession, detailed enquiry regarding title is not
required and in cases involving complicated issues of title parties
are to be relegated to a comprehensive suit on title. Petitioners
have not sought any declaration of title or other relief based on
title. They only sought a decree for prohibitory injunction based
on their possession. Report of the Advocate Commissioner is
only an item of evidence. It is open to the petitioners to adduce
evidence regarding possession of property as they claim in
O.S.No.370 of 2001. So far as O.S.No.475 of 2001 is concerned,
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respondents who filed the suit have not come up with any
contention that Exts.P8 and P10, reports and plans are not
acceptable. Petitioners as defendants are resisting O.S.No.475 of
2001. In that case also there is no counter claim made by
petitioners based on title claimed by them. In that situation, it is
for the respondents who have filed O.S.No.475 of 2001 to show
with acceptable plan that property described in O.S.No.475 of
2001 is properly identified and that they have title over the said
property as per documents of title. If there is any infirmity in the
reports and plans in that regard it will only come to the
disadvantage of respondents who filed O.S.No.475 of 2001. This
court has also held in Sarojini Vs. Karthiyani Amma (2010(1)
KLT SN 17 Case No.19) that interference with the reports and
plans submitted by the Advocate Commissioner under Article 227
of the Constitution is warranted only if it is shown that any order
passed by the trial court as to whether the report has to be set
aside or remitted suffered from such infirmity which if not
corrected will result in grave injustice. I stated that so far as
petitioners are concerned, their suit is only for decree for
injunction based on possession which they can prove by
appropriate evidence and that the infirmity in the report and plan
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if any so far as property in O.S.No.475 of 2010 is concerned does
not come into disadvantage of petitioners. It is open to the
petitioners to examine the Advocate Commissioner and Surveyor
at the time of trial and show that respondents are not entitled to
the declaration prayed for in O.S.No.475 of 2010. In that
situation I am not persuaded to think that there is any infirmity in
the report and plan which is required to be interfered at this
stage.
Original petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-