IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24744 of 2010(O)
1. THELATH MATHAVANGATTIL RAVIKUMAR
... Petitioner
Vs
1. THELATH MATHAVANGATTIL AMMINI AMMA
... Respondent
2. SWATHANTHRAKUMARI,
3. PADMINI,
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/08/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.24744 of 2010
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Dated this the 12th day of August, 2010.
JUDGMENT
Defendant in O.S.No.21 of 2009 of the court of learned Munsiff,
Parappanangadi is aggrieved by order dated 22.06.2010 on Ext.P3, I.A.No.973
of 2010 deputing an Advocate Commissioner to identify the suit property and for
allied matters. According to the petitioner/defendant it was absolutely not
necessary to depute an Advocate Commissioner to identify the property since
identity is not in dispute. According to the petitioner, attempt of the respondents
is to divert the real issue involved in the suit that petitioner being a co-owner of
the property, respondents could not seek any injunction against him in the way
prayed for.
2. Suit as instituted is one for prohibitory injunction to restrain
petitioner from constructing permanent way along the suit property through
which respondents allege, petitioner was given a temporary permission to gain
access to his property adjoining the suit property and committing waste in the
suit property. Petitioner contended that he is a co-owner of the property and
hence, respondents are not entitled to the injunction prayed for. He also
resisted the suit on various other grounds. Respondents filed I.A.No.973 of 2010
to appoint an Advocate Commissioner to identify the suit property and for other
matters. That application was objected on the ground which I have stated above.
Learned Munsiff was not impressed by the objection and allowed the
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application. That order is under challenge. Learned counsel for petitioner
contends that apart from the fact that there is no dispute regarding identity of
property, there is already a report and sketch in the case which identified the
suit property and hence the order under challenge cannot be sustained.
3. There can be no doubt that it was well within the power of court
below to appoint an Advocate Commissioner and hence it cannot be said that
court below transgressed its limits of power in appointing an Advocate
Commissioner. Nor does the order affect any right of petitioner in that
notwithstanding whatever report Advocate Commissioner submits it is open to
the petitioner to contend, as stated in his written statement that he being a co-
owner no injunction as prayed for could be granted. I must also bear in mind
that even in a suit for injunction it is appropriate to have a properly prepared plan
of the property identifying it so that, decree that may be granted is specific and
that will avoid possible disputes in execution. No doubt executing court has also
the power to identify the property. Question of identification of property is not a
matter ordinarily to be left to the executing court to decide. No doubt petitioner
did not dispute identity of property. Question is not whether petitioner has
disputed identity but whether respondents who are claiming injunction have
identified the property so that an effective decree could be passed.
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4. I have gone through copy of report and sketch learned counsel has
produced in this Writ Petition. The Advocate Commissioner has not stated
about boundaries of the suit property and property admittedly belonging to the
petitioner. Advocate Commissioner has only shown the pathway which
according to the respondents was permitted to be used by the petitioner
temporarily for access to his property. The sketch also does not show any
measurement of the suit property. In that situation it may not be possible to
identify the suit property based on the said report and sketch alone. I do not
find reason to interfere with the order on Ext.P3, application. But it is made
clear that if the petitioner wants any matter to be ascertained through the
Advocate Commissioner it is open to him to file work memo in the court below
and seek appropriate direction to the Commissioner. If any additional work is
required it is open to the court below, if such a course is warranted to direct
petitioner to pay a portion of the batta payable to the Advocate Commissioner.
I also make it clear that court below shall consider (at the final stage) contention
raised by petitioner that he being a co-owner of the suit property respondents
are not entitled to the injunction prayed for.
With the above directions Writ Petition is dismissed.
THOMAS P.JOSEPH,
Judge.
cks