ULAHANNAN Vs. MATHAI

JUDGEMENT

(1.) THE Writ Petitioner who is the plaintiff in O.S. 17 of 2007 on the file of the Munsiff's Court, Kolencherry. THE said suit is for fixation of boundary of the plaint schedule property admeasuring 20 cents of land allotted to the plaintiff under Ext.P1 partition deed dated 13-7-1964. THE respondent/defendant who is the brother of the petitioner is the owner of the northern plot. THE plaint schedule property was the property described in the schedule to Ext.P1 partition deed and the northern plot belonging to the defendant was "C" schedule to Ext.P1 partition deed. THEre is a recital in Ext.P1 partition deed which reads as follows:- A plain reading of the said recital will indicate that if any portion of the building situated in the C schedule thereto is projecting into the B schedule, the allottee of "C" schedule shall possess and enjoy the projecting portion as well as the site thereof absolutely. commission was taken out in the suit and the Commissioner filed Ext.P3 report as per which a portion of the building situated in the northern property belonging to the defendant is jutting out into the plaint schedule property which corresponds to the B schedule in Ext.P1 partition deed. Evidently for the purpose of fixing the boundary of the plaint schedule property, the Commissioner sought a clarification from the learned Munsiff. As per Ext.P3 impugned order dated 11-6-2009, the learned Munsiff clarified as follows:-

(2.) SINCE the above clarification was given only at the interlocutory stage, it cannot be said that it is a peremptory direction which is hold good during trial. At any rate it is too early to say whether the defendant will be entitled not only to the portion of the building projecting into the plaint schedule property together with the site thereof but also to the narrow strip of land lying on either side of the projection. Hence, the Advocate Commissioner while submitting the report and plan shall give both alignments one showing the fixation of boundary excluding the narrow strip of land lying on either side of the projected area and one including the narrow strip of land lying on either side of the projected area. The court below shall decide the impact of the recital in Ext.P1 partition deed after trial and in accordance with law. This Writ Petition is disposed of as above.