IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14606 of 2009(O)
1. SINDHU, W/O. HARIDAS, AGED 30
... Petitioner
Vs
1. JOHNEY, S/O. THOMAS, PANENGADAN
... Respondent
For Petitioner :SRI.V.M.KRISHNAKUMAR
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :20/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.14606 of 2009 - O
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Dated this the 20th day of July, 2009
J U D G M E N T
The writ petition is filed seeking the following relief:
“To call for the records leading to Ext.P4 and set
aside the same.”
2. Plaintiff in O.S.No.75/2008 on the file of the Munsiff
Court, Wadakkanchery, is the petitioner. Suit is one for
injunction and the respondent the defendant.
Respondent/defendant in his written statement has disputed
among other contentions the description of the plaint property.
After a commission was taken out by the plaintiff in which a
report and rough plan was prepared, the defendant moved an
application for measuring out the suit property to substantiate his
contention that the plaint schedule shown by the plaintiff suffered
from misdescription. The application was objected to by the
plaintiff and negativing that objection survey measurement of the
property as desired by the defendant was allowed by the learned
Munsiff. Ext.P4 is the copy of that order. Impeaching the
propriety and correctness of Ext.P4 order, petitioner/plaintiff has
W.P.(C).No.14606 of 2009 – O
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filed this writ petition invoking the supervisory jurisdiction vested
with this Court under Article 227 of the Constitution of India.
3. I heard the counsel on both sides.
4. Learned counsel for the petitioner submitted that
already there is a report prepared and filed by the commissioner
and so much so, appointment of another commissioner as desired
by the respondent/defendant to measure out the property with
the assistance of a surveyor was not necessary and the court
below went wrong in Ext.P4 order. Ext.P3 is the copy of the
written statement filed by the respondent/defendant resisting the
suit claim. Perusal of Ext.P3 shows that the defendant has raised
a specific contention challenging the description of the suit
property. In a suit for injunction, the burden is on the plaintiff
to identify the suit property to claim a decree in the suit. No
burden is cast upon the defendant to identify the suit property
for the reason that he has challenged its identification. So much
so, if the plaintiff is satisfied with the rough sketch already
prepared by the commissioner, normally, on the basis of which
no decree for the relief claimed could be granted, it is the risk of
W.P.(C).No.14606 of 2009 – O
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the plaintiff and not that of the defendant. There was no
necessity for the court below to entertain the application from the
defendant to measure out the suit property over which the
plaintiff claimed decree for injunction. Ext.P4 order is set aside,
leaving the risk for nonmeasuring of the suit property to the
plaintiff despite the objection taken by the defendant as to the
misdescription of that property.
The writ petition is closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-