IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29621 of 2008(B)
1. ABDUL RASHEED,
... Petitioner
Vs
1. SHAILA BEEGUM, D/O. SALIKATHU BEEVI,
... Respondent
2. MUHAMMED SHAMNAD,
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :17/10/2008
O R D E R
V. RAMKUMAR, J.
* * * * * * * * * * * * * * * * * *
W.P. (C ) NO. 29621 of 2008
* * * * * * * * * * * * * * * * * *
Dated: 17-10-2008
JUDGMENT
Petitioner who is the defendant in O.S. 211 of 2007
on the file of the Munsiff’s Court, Nedumangad filed I.A.
No. 572 of 2008 for the appointment of a Commission to
identify the counter claim schedule property. Ext.P3 is the
said application which has been dismissed as per Ext.P4
order dated 13-3-2008.
2. The aforementioned suit instituted by the
respondents herein is one for demarcation of the boundary
of the properties of both the plaintiffs and the defendants
and for constructing a boundary wall on the basis of Ext.C3
plan prepared by the Advocate Commissioner in an earlier
suit conducted between the same parties filed as O.S.
238 of 1996 before the same court. The petitioner herein
had filed a counter claim in the present suit and sought
for declaration of title and for fixing the boundary and also
for consequential injunction. According to the petitioner it
was to identify the counter claim schedule property that he
applied for issue of a commission and the court below erred
in not allowing the said prayer.
2. It is an admitted fact that in the earlier suit
W.P. (C ) NO. 29621 of 2008 -:2:-
between the same parties filed as O.S. 238 of 1996 Ext.C3
plan prepared by the Advocate Commissioner and it was on
the strength of that plan that the earlier suit was decreed
and even the boundary was fixed as per Ext.C3 plan. The
court below has observed that in Ext.C3 plan both the
properties have been clearly shown with separate
boundaries. It was for putting up the compound wall that
the present suit has been filed. Except contending that the
properties are different, the petitioner had not
substantiated the said contention which in the particular
facts and circumstances of the case cannot be upheld. The
court below was therefore right in rejecting the petition
filed by the petitioner for issue of a fresh commission and
plan.
The Writ Petition fails and it is accordingly dismissed.
Dated this the 17th day of October 2008.
Sd/-V. RAMKUMAR,
(JUDGE)
/true copy/
ani.