T K GEORGE Vs. GEORGE THOMAS

JUDGEMENT

(1.) Defendant Nos.2,4 and 5 in O.S.No.423 of 2008 on the file of the Prinicpal Munsiff Court, Kottayam are the writ petitioners. The said suit, instituted by respondents 1 and 2 herein, is one for a perpetual injunction against trespass simplicitor. Except the ex parte commission taken out by the plaintiff, according to the petitioners, the plaintiff has not adduced any evidence to identify the plaint schedule properties. The petitioners claim to have filed I.A.No.1486 of 2009 to take out a survey commission to identify the plaint schedule properties. That application was allowed and the Advocate Commissioner deputed by the court below filed his report and plan. The said report and plan were set aside on the application filed by the plaintiffs as I.A.No.1918/2009 as evidenced by Ext.P6 order dated 8.10.2009. Thereafter, the petitioners herein filed Ext.P3 application as I.A.No.3451 of 2009 for the issuance of another Commission to ascertain five matters. The first matter to be ascertained was to measure and locate the boundaries of the plaint schedule properties on the basis of Gift Deed No.1663/84 and Partition Deed No.595 of 2001 and the relevant re-survey records of Pampady village and Puthuppally village. The petitioners also wanted a plan showing the plaint schedule properties , the pathway as well as the width of the pathway at different points and various indications of the attempt and the mischief allegedly committed by the plaintiffs to encroach upon the existing pathway, a report regarding the planting of electric posts on either side of the pathway and on the road side and any other particulars sought to be ascertained by the defendant during the local inspection by the Commission. As per Ext.P5 order dated 4.01.2010 the trial court granted prayer Nos.1 and 5 of Ext.P3 application. According to the petitioners, the court below should have granted the remaining three prayers also. Hence this writ petition.

(2.) I fail to understand as to why the court below issued a commission at the instance of the defendants. The suit is one for injunction simplicitor. It is for the plaintiffs to prove their possession of the plaint schedule properties on the date of suit. If the plaintiffs fail to prove their possession and also fail to identify the plaint schedule properties it is the plaintiffs who will be running the risk of a dismissal of the suit. There is no obligation cast on the defendants to identify the plaint schedule properties. The prayers 3 and 4 in Ext.P3 application ( I.A.No.3451/2009) are all matters which would constitute a cause of action for the defendants to file a suit against the plaintiffs. Those matters cannot be investigated at the instance of the defendants in a suit for injunction.

(3.) Now that the court below has allowed the first prayer to measure and locate the plaint schedule properties on the basis of title deeds and survey records and the plaintiffs have not taken exception to that order, that will meet the ends of justice. The court below should have directed the Commissioner to prepare and produce a plan also. In case there is no plan already submitted, the court below shall direct the Commissioner to prepare a plan of the plaint schedule properties also. I do not find any illegality or error of jurisdiction in the court below refusing the rest of the prayers in Ext.P3 application. This writ petition is accordingly dismissed clarifying the above aspect namely the necessity of a plan, if no plan has already been submitted and accepted. Dated this the 28th day of January, 2010.