BHARATHAN Vs. ARJUNAN

JUDGEMENT

(1.) The original petition is filed to set aside the order in I.A. No.1078/2018 in O.S. No.33/2015 (Exhibit P10) passed by the court of the Munsiff, Kayamkulam.

(2.) The petitioner, the plaintiff in the above suit, has sought a decree for recovery of the possession and fixation of boundary against the respondent - his younger brother. The petitioner, the respondent, their mother, and other siblings had executed partition deed No.1992/1988 of the Bharanikavu Sub Registry, partitioning their properties into three shares. After the death of their mother, the respondent encroached into a portion of the petitioner's property. Despite the petitioner requesting the respondent to measure the property, he has not acceded. Thus, the petitioner was constrained to file Exhibit P1 suit. The respondent has resisted the suit by filing Exhibit P2 written statement. The petitioner has been relentlessly seeking for the old survey plan of the area. He has received Exhibit P3 information from the Central Survey Office that the old survey plan is unavailable. The petitioner has got the properties measured through the surveyor, with the aid of the re-survey plan and partition deed, and Exhibit P4 commission report was filed before the court below. After the conclusion of the trial and final hearing, the learned Munsiff, on a finding that Exhibit P4 commission report is not as per the old survey plan, by Exhibit P5 order has remitted the commission report. The petitioner has information from the Village Office, Taluk Survey Office and the Assistant Director of Re-survey Chegannur, as per Exhibits P6 to P6C, respectively, that the old survey plan is unavailable. During the interregnum, the petitioner had approached this Court for the expeditious disposal of the suit, which was allowed as per Exhibit P8 judgment. The period was further extended by Exhibit P9 order. The court below has, by the impugned order, directed the petitioner to make necessary amendments in I.A. No.867/2017 and the commissioner to prepare a report based on the old survey records. Exhibit P10 is untenable and unsustainable in law, particularly in the light of Exhibits P6 to P6C. Hence, the original petition.

(3.) Heard, Sri. R. Rajasekharan Pillai, the learned counsel appearing for the petitioner and Smt. Asha Elizabeth Mathew, the learned counsel appearing for the respondent.