High Court Kerala High Court

N.P.Johny vs Prabhakaran on 22 October, 2010

Kerala High Court
N.P.Johny vs Prabhakaran on 22 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C).No. 427 of 2010(O)


1. N.P.JOHNY,AGED 70,NEELANKAVIL
                      ...  Petitioner

                        Vs



1. PRABHAKARAN,S/O.PUTHENPURAVEETIL
                       ...       Respondent

                For Petitioner  :SRI.G.SREEKUMAR (CHELUR)

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :22/10/2010

 O R D E R
                   THOMAS P.JOSEPH, J.
           ====================================
                     O.P(C) No.427 of 2010
           ====================================
          Dated this the 22nd   day of October,    2010

                         J U D G M E N T

Defendant in O.S. No.1354 of 2009 of the court of learned

Additional Munsiff-III, Thrissur is the petitioner before me. He is

defending a suit filed by the respondent-plaintiff for a decree for

prohibitory injunction against trespass into suit property and

commission of waste. According to the respondent the suit

property having specific boundaries on all sides as stated in the

plaint belonged to and is in his possession as per document

No.2459 of 2007. Respondent inter alia contended that

description of the property is not clear and that plaint does not

even say whether on any side of the suit property petitioner has

any property in his possession. Petitioner filed I.A. No.5227 of

2010 to appoint an Advocate Commissioner to measure the

property with the assistance of a Surveyor. That application was

dismissed by the learned Munsiff holding that suit is merely for

prohibitory injunction against trespass and commission of waste.

Exhibit P6 order is under challenge in this petition. Learned

counsel for petitioner contends that though it is styled as a suit for

injunction issue regarding title is also involved and measurement

O.P(C) No.427 of 2010
-: 2 :-

of the property is essential.

2. I find myself unable to give my assent to the

argument. The suit as framed is merely for prohibitory injunction

stating that suit property acquired by the respondent as per

document No.2459 of 2007 has specific boundaries on all four

sides. Exhibit P3, report and plan prepared by the Advocate

Commissioner also prima facie shows that. If description of the

property is not clear and it has no specific boundaries as

claimed by him, it goes to the disadvantage of respondent-

plaintiff. There is no reason why in a suit for injunction based on

possession, petitioner-defendant should go for a measurement of

the suit property as if it is a suit on title. I must also bear in

mind that going by the plaint schedule description no property

belonging to the petitioner lies adjacent to the suit property. In

the circumstances a measurement of property with the

assistance of Surveyor is not warranted. If petitioner has any

dispute regarding title claimed by respondent his remedy is

elsewhere. I do not find reason to interfere with Ext.P6, order.

Original Petition is dismissed.

THOMAS P. JOSEPH, JUDGE.

vsv