IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 502 of 2010(O)
1. BIJI POTHEN, S/O.K.M.BABY,
... Petitioner
2. JIJI POTHEN, S/O.K.M.BABY,
3. AJI POTHEN, S/O.K.M.BABY, DO. DO.
Vs
1. MINI JOSEPH, W/O.JOHN ALEX,
... Respondent
For Petitioner :SRI.JOSE J.MATHAIKAL
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :01/11/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.502 of 2010
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Dated this 01st day of November, 2010
JUDGMENT
Defendants in O.S.No.321 of 2007 of the court of learned
Munsiff, Hosdurg are the petitioners challenging Ext.P6, order
refusing to remit the report and plan submitted by the Advocate
Commissioner. Respondent filed the suit for prohibitory injunction
to restrain petitioners trespassing into the suit property.
Respondent applied for appointment of a commission. That
application was resisted by petitioners contending that properties
are not identified. Advocate Commissioner submitted Ext.P3, report
after measuring property with the assistance of a Surveyor. That
report was requested to be remitted as per Ext.P4, application
which was dismissed as per Ext.P6, order. Learned counsel
contends that even now boundaries of the properties are not
properly identified and that property taken over by the Government
as excess land has not been identified and hence the court below
ought to have remitted the report as requested in Ext.P4.
2. It is seen from Ext.P3, report of the Advocate
Commissioner who visited property 8 times with the Surveyor that
the suit property was measured. As per the report of the Advocate
O.P(C).No.502 of 2010
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Commissioner, claim of respondent/plaintiff is for plot marked as
ABCDEFGHIJK. On its east is property belonging to petitioner No.3
as per document No.1364 of 1999. Petitioner No.3 had 14.82 acres
altogether and as per the said document, a portion of the property
according to the Advocate Commissioner is situated on the east of
public road. One objection raised is that the said portion of the
property was not measured but, learned Munsiff has observed that
there was no request to identify the property and the request was
only to mark the property. Commissioner also noticed that of the
property belonging to petitioner No.3, he has sold 6.55 acres to
Koshy Mathew as per document No.2074 of 2005. Commissioner
also says that actual dispute is over ABCDMIJKA of which a portion
is said to be sold by petitioner No.3 to Koshy Mathew. In Ext.P4,
application petitioner claimed that it is necessary to identify the
property taken over by the Government as excess land. Learned
Munsiff has observed in Ext.P6, order that major portion of Ext.P4,
application related to observations made by the Advocate
Commissioner and if those observations are not correct it is open to
the petitioner to adduce evidence regarding that.
3. I must bear in mind that this is a simple suit for
injunction based on possession claimed by the respondent. A
detailed enquiry into title is not admitted. If complicated issues
regarding title is involved the parties have to go for a
comprehensive suit on title. Now what is required to be decided is
O.P(C).No.502 of 2010
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whether suit property was in the possession of the respondent on
the date of suit. If according to the petitioners the suit property is
not properly identified, they can adduce evidence in that line and
that does not go to the disadvantage of petitioners. Having gone
through the records, Ext.P4, application and Ext.P6, order and
hearing learned counsel I am not satisfied that there is any gross
injustice arising from Ext.P6, order which is required to be
corrected by this court under Article 227 of the Constitution.
There is no reason to interfere with Ext.P6, order.
This petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-