IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST DAY OF JANUARY 2013 1ST MAGHA 193 OP(C).No. 2807 of 2011 ( ) -------------------------- AGAINST THE ORDER/JUDGMENT IN OS.63/2010 of MUNSIFF COURT, QUILANDY PETITIONER(S)/PETITIONER: ------------------------------------------------ THAZHEKOTTUR KORAN, S/O.CHOYI, MODATHIKKANDY PARAMBIL,AVITTANALLUR DESOM POONATH DESOM,KOYILANDY TALUK. BY ADVS.SRI.V.V.ASOKAN SMT.RUKHIYABI MOHD KUNHI RESPONDENT(S): ---------------------------- THANNARANGAL GOPALAN, S/O.UNNERI, AVITTANALLUR AMSOM,POONATH DESOM,KOYILANDY TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2807 of 2011 ( ) APPENDIX PETITIONERS EXHIBITS EXT.P1: TRUE COPY OF PLAINT IN O.S.63/2010 MUNSIFF COURT, KOYILANDY. EXT.P2: TRUE COPY OF THE ADVOCATE COMMISSIONER'S REPORT. EXT.P2(a): TRUE COPY OF THE ADVOCATE COMMISSIONER'S SKETCH. EXT.P3: TRUE COPY OF I.A.NO.1023/2010 IN O.S.63/2010, MUNSIFF COURT, KOYILANDY. EXT.P4: TRUE COPY OF THE ORDER IN I.A.NO.1023/2010 IN IN O.S.63/2010, MUNSIFF COURT, KOYILANDY. EXT.P5: TRUE COPY OF I.A.NO.447/2011 IN I.A.NO.1023/2010 IN IN O.S.63/2010, MUNSIFF COURT, KOYILANDY. EXT.P5(a): TRUE COPY OF THE EYE SKETCH APPENDED ALONG WITH I.A.NO.447/2011 IN I.A.1023/2010 IN O.S. 63/2010, MUNSIFF COURT, KOYILANDY. EXT.P6: TRUE COPY OF THE ORDER IN I.A.NO.447 IN I.A.NO. 1023/2010 IN O.S.63/2010, MUNSIFF COURT, KOYILANDY. RESPONDENTS EXHIBITS NIL //TRUE COPY// P.A. TO JUDGE JJJ THOMAS P. JOSEPH, J.
- - - - - - - - - - - - - - - - - - - - - - - - - O.P.(C). No. 2807 OF 201.- - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of January, 2013 JUDGMENT
Respondent is served, but there is no response.
2. Petitioner is the plaintiff in O.S.No.63 of 2010 of the Munsiff's Court, Koyilandy, aggrieved by Ext.P6, order refusing to review Ext.P4, order.
3. The petitioner filed O.S. No.63 of 2010 for a decree for prohibitory injunction against trespass and altering the existing boundary paying court fee under Section 27(c) of the Kerala Court Fees and Suits Valuation Act (for short 'the Act'). The suit property is described as 47 cents in R.S. No. 28/2. The boundaries of that property is also specifically mentioned in the plaint. The Advocate Commissioner submitted Exts. P2 and P2(a), a report and plan. That was followed by the petitioner filing Ext.P3, application (I.A.No. 1023 of 2010) to remit Ext.P2 and P2(a). That application was dismissed by Ext.P4 order.
4. Later, producing Ext.P5(a), sketch allegedly of the suit property, petitioner filed Ext.P5, application - I.A. No. 447 of 2011 for review of Ext.P4, order which wad dismissed by Ext.P6, order.
5. Learned counsel submits that Ext.P5(a) would show the correct lie of the property as against Ext.P2(a) and in the circumstance, learned Munsiff was not right in refusing to review Ext. P4, order.
6. I must notice that in the suit, the prayer is for decree for O.P.(C). No. 2807 OF 201.-2- prohibitory injunction against trespassing into the suit property or altering its existing boundary. Therefore the suit can be disposed of based on possession claimed by the petitioner and its existing boundaries, if any.
7. Learned Munsiff also has observed in Ext.P4, order in paragraph 5 that the suit is one for prohibitory injunction and that no purpose will be served by remitting the plan and report as prayed for in Ext.P3. In the above circumstances, I do not find any reason to interfere with the impugned order. But, I make it clear that if at all correctness of the plan submitted by the Advocate Commissioner arises and is required to be decided in the suit, it is open to the petitioner to raise that question in the course of trial, notwithstanding Ext.P4 and P6 orders. With the above observations, this Original Petition is closed. Sd/- THOMAS P. JOSEPH, JUDGE. ds