Suja Zakaria v. M. G. Ratheesan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932** ## **WP(C).NO. 19349 OF 2010(O)** **-----------------------------------------** **I.A. NO.4754 OF 2005 IN OS.140/2004 OF ADDL.MUNSIFF COURT, ALAPPUZHA** **....................** ## **PETITIONER(S):** **------------------------** **SUJA ZAKARIA, W/O.ZAKARIA, AGED 50 VANDIPARAMBIL HOUSE, PICHU IYER JUNCTION ALAPPUZHA.** **BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN** **SRI.GEORGE MATHEW SRI.DIPU JAMES** ## **RESPONDENT(S):** **-------------------------** **M.G.RATHEESAN, MUTTEL HOUSE DISTRICT COURT WARD, ALAPPUZHA-4.** **ADV. SRI.S.SANAL KUMAR FOR R1 SMT.BHAVANA.V. FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX ---------------** ## **PETITIONER'S EXHIBITS: ----------------------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.140 OF 2004 BEFORE THE MUNSIFF'S COURT, ALAPPUZHA.** **EXHIBIT P2 TRUE COPY OF SALE DEED NO.1300 DATED 10.8.1982 OF THE SRO ALAPPUZHA. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN O.S. NO.140 OF 2004. EXHIBIT P4 TRUE COPY OF I.A.. NO.475 OF 2005 IN O.S. NO.140 OF 2004. EXHIBIT P5 TRUE COPY OF REPORT OF ADVOCATE COMMISSIONER. EXHIBIT P5(a) nTRUE COPY OF PLAN. EXHIBIT P6 TRUE COPY OF I.A. NO.4654 OF 2005 IN O.S. NO.140 OF 2004 FILED BY PETITIONER. EXHIBIT P7 TRUE COPY OF ORDER ON I.A. NO.4754 OF 2005 IN O.S.. NO.140 OF 2004 OF MUNSIFF'S COURT, ALAPPUZHA DATED 9.3.2010.** **RESPONDENT'S EXHIBITS:** **----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.19349 of 2010 ==================================== Dated this the 31[st] day of August, 2010** ## **J U D G M E N T** Exhibit P7, order on I.A. No.4754 of 2005 in O.S.No.140 of 2004 of the court of learned Munsiff, Alappuzha is under challenge at the instance of plaintiff in the suit. Vide that order learned Munsiff has refused to set aside Ext.P5, series report and plan. Petitioner sued respondent for a decree for prohibitory injunction describing the suit property as 23 cents in extent in Sy.No.26/1A/1 and bounded by property of respondent-defendant and Sobha on the east, lane on the north and west and the District Court-Punnamada road on the south. According to the petitioner he got title and possession of 20 cents out of the suit property as per Ext.P2, sale deed dated 10.08.1982 and at the time of execution of sale deed his assignor put him in possession of 3 cents of kuthakapattom land on the immediate south adjoining the said 20 cents. Respondent purchased property on the east of the suit property from the same vendor and at that time respondent also got possession of some kuthakapattom land on the south of his property. Alleging that respondent is attempting to trespass **W.P(C) No.19349 of 2010** ## -: 2 :- into the suit property petitioner filed the suit and prayed for prohibitory injunction. Since respondent disputed identity of the suit property petitioner applied for issue of a commission with the assistance of surveyor to identify the suit property. It is accordingly that Advocate Commissioner has submitted Ext.P5, series report and plan obtained with the assistance of a Surveyor. Not satisfied with Ext.P5, series report and plan petitioner filed I.A.No.4754 of 2005 (Ext.P6) to set aside Ext.P5 series. On that application learned Munsiff recorded evidence but found that there is no substance in the objection raised by petitioner and dismissed Ext.P6, application vide Ext.P7, order. Learned counsel for petitioner contended that Ext.P7, order cannot be sustained. According to the learned counsel even as per Ext.P2, assignment deed width of the registered holding of petitioner, north-south is 70 links which the Advocate Commissioner also has reported. But the property in the possession of petitioner is shown as having width of only 56 links. Advocate Commissioner has not explained how that deficit came. It is pointed out that as per Ext.P2, kuthakapattom land is on the south of registered holding of petitioner which is not disputed by respondent also but the Advocate Commissioner ## **W.P(C) No.19349 of 2010** ## -: 3 :- has not correctly stated extent of kuthakapattom land in the possession of petitioner. It is further contended that though the road on the western side of suit property does not form part of suit property as admitted by the Advocate Commissioner in his evidence it would appear that measurement of 70 links referred to was taken by the Advocate Commissioner including width of the said road towards the southern side. Thus the report is inadequate, incorrect and insufficient and hence Ext.P6, application. Learned counsel for respondent in response contended that it is based on the available material that measurement was taken and the Advocate Commissioner has correctly identified the suit property. It is also pointed out that there is no prayer for declaration of title, fixation of boundary or any other reliefs based on title and in so far as the suit is merely for prohibitory injunction what is required to be ascertained is only the extent of property in the possession of petitioner so as to enable him get a decree for prohibitory injunction. I have gone through paragraph 4 of Ext.P7, order. Learned Munsiff stated that there is no evidence of extent of kuthakapattom held by petitioner and respondent (adjoining their registered holding on the southern side) and hence there ## **W.P(C) No.19349 of 2010** ## -: 4 :- could not be any measurement of the kuthakapattom land on the basis of any document. Commissioner has measured the suit property excluding the kuthakapattom land based on title deed and possession and the same is shown in the sketch. As per the measurement based on title deeds of petitioner (Ext.P2) it is 20 cents while petitioner is found to be in possession of 20.50 cents. Commissioner found more extent of kuthakapattom land in the possession of petitioner on the southern side of his registered holding than 3 cents as claimed by petitioner. Learned Munsiff also referred to the absence of theodalite stones to measure the property but it is stated that Commissioner measured the property of respondent shown in the sketch. Learned Munsiff was also of the opinion that there was no evidence to show when the roads on the east of respondent and west of petitioner were formed. Learned Munsiff observed that suit is merely for injunction and there is no prayer for fixation of boundary or recovery of possession. The survey commission has no much relevance in the suit. ## 2. The Supreme Court in **Anathulla Sudhakhar v.** **P.Buchu Reddy** ([2008] 4 SCC 594) stated that in a suit for injunction based on possession it is not necessary to go into the ## **W.P(C) No.19349 of 2010** ## -: 5 :- serious issues regarding title and in cases including complicated questions of title parties are to be referred to a comprehensive suit on title. Learned Munsiff was right in observing that this being a suit for injunction there is no much relevance in the survey commission since what is to be decided is the property in the possession of petitioner. True some identification is required for that also since to give an effective decree of prohibitory injunction parties must be aware of the boundary of the property for which injunction is granted. According to the learned Munsiff Ext.P5, series are sufficient for the said purpose. 3. So far as contention raised by petitioner that report is not correct and that he is in possession of more extent of land than reported by the Advocate Commissioner is concerned I make it clear that report of Advocate Commissioner is only a piece of evidence and it is open to the petitioner to adduce evidence in support of any extent of land not referred to by the Advocate Commissioner or included by the Advocate Commissioner in the report as forming part of property in his possession. I make it clear that it will be open to petitioner to adduce appropriate evidence in support of his contentions. 4. At this stage learned counsel requested that petitioner ## **W.P(C) No.19349 of 2010** **==> picture [41 x 10] intentionally omitted <==** may be permitted to seek amendment of plaint to incorporate a prayer for fixation of boundary. It is not necessary for me to deal with that question in this proceeding. It is open to the petitioner to move appropriate application if otherwise he is entitled to that course. I also make it clear that the observations made by the learned Munsiff in Ext.P7, order will be confined to the request contained in Ext.P6, application to set aside the report and plan. Writ Petition is disposed of with the above observations. ## **THOMAS P. JOSEPH, JUDGE.** vsv