IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 906 of 2010(O)
1. KUMARAN, S/O.PARAMAN, AGED 54,
... Petitioner
Vs
1. SANKU, S/O.PARAMAN, AGED 71,
... Respondent
For Petitioner :SRI.B.RAMACHANDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/11/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.906 of 2010
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Dated this 29th day of November, 2010
JUDGMENT
Plaintiff in O.S.No.363 of 2007 of the court of learned
Munsiff, North Paravur is the petitioner before me challenging
Ext.P9, order refusing to set aside Exts.P3 and P4, report and
plan submitted by the Advocate Commissioner with the
assistance of a Surveyor. Petitioner sued respondent for recovery
of possession of plaint B schedule property. He claimed that A
schedule property described in the plaint as 8.889 cents in survey
No.229/15 was acquired by him as B schedule item in partition
deed No.4685 of 2000. Plaint B schedule is a small strip of
having a width of 12= ft and length of 12= ft towards the
western portion of plaint A schedule which petitioner alleged,
was trespassed upon by the respondent. Petitioner hence wanted
recovery of possession of a portion of the property on the
strength of title. Respondent claimed that as per the same
partition deed he got 1.111 cents. Advocate Commissioner with
the assistance of the Surveyor measured the property and
submitted Exts.P3 and P4, report and plan. Petitioner filed
Ext.P5, objection to Exts.P3 and P4, stating that on all sides of
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plaint A schedule Commissioner has left out about 10cms from
measurement. On the same day petitioner filed Ext.P7,
application to set aside Exts.P3 and P4 stating that there was no
measurement of the property as per partition deed No.4685 of
2000. That application was opposed by respondent and learned
Munsiff vide Ext.P9, order has dismissed the application. It is
contended by learned counsel that Advocate Commissioner and
Surveyor have not measured the property with reference to the
partition deed.
2. I am unable to accept that argument. On going
through the order it is seen that learned Munsiff has referred to
the evidence of Advocate Commissioner as PW1 where he has
stated that he measured the property with reference to partition
deed also but of course there was slight difference in the
measurement when compared to the measurements referred to in
the partition deed. Commissioner and Surveyor on measurement
found that properties are comprised in survey 226/15 and
226/16. Though in the partition deed the 8.889 cents allotted to
the petitioner is described as comprised in 229/15 on
measurement it was found to be 8.170cents in survey 229/15 and
1.170 cents in 229/16 which meant that the total extent on which
petitioner is claiming right came to 9.340cents while the partition
deed referred to only an extent of 8.889 cents. So far as
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entitlement of respondent is concerned, Advocate Commissioner
and Surveyor found that the 1.111 cents referred to in the
partition deed is in survey 229/15 but on measurement it was
found to be in survey 229/16 and the extent was found to be
0.985cents. Commissioner has also stated that a portion of
property belonging to the petitioner was seen encroached by the
respondent (extent, to 0.560 cents). There was no difference in
the boundary of the properties as reported by the Advocate
Commissioner. What is revealed is only slight difference in the
measurement from what the partition deed stated and the
measurement at site. I have gone through Ext.P9, order and find
that the court below has referred to the relevant aspects to hold
that there is no necessity to set aside Exts.P3 and P4. I do not
find reason to interfere. I make it clear that if otherwise
petitioner is entitled, it is open to the petitioner to challenge the
correctness of Ext.P9, order in the appeal that may be preferred
against judgment and decree of the court below.
This petition is closed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-