(1.) Petitioners in this Original Petition are the appellants in Appeal Suit, A.S.No.63/2015 on the file of the District Court, Ernakulam, which has arisen out of the impugned judgment and decree dated 1.4.2015 rendered in O.S.No.429/2015 on the file of the Munsiff Court, Ernakulam. The Original Suit was filed challenging the alleged illegal attempt of the respondents to take over and acquire the property of the petitioners herein and it is their specific case that they have been deprived of their properties which are covered by valid title deeds. The suit was dismissed as not maintainable. Therefore, in the present pending Appeal Suit, A.S.No.63/2015, the main issue is as to the maintainability of the suit. The petitioners filed Ext.P -5 Interlocutory Application No.185/2015 in the Appeal Suit on 9.4.2015 praying for appointment of an Advocate Commissioner to carryout the local inspection. The plea made by the petitioners was that though the respondents State authorities contend that only 0.01 ares of property belonging to the 1st petitioner alone has been acquired, more extent of properties of all the petitioners have been actually acquired. The specific contra plea of the respondent State authorities is that the property of the 1st petitioner is in Sy.No.225/1 of Elamkulam Village and that only 0.01 ares (1 sq.m.) property therein belongs to the 1st petitioner and rest of the properties acquired happens to be the Government puramboke land and some of the other petitioners have made some improvements and constructions in the said Government puramboke land and Governmental authorities have granted compensation only for such improvements and constructions made in the said Government puramboke land and the petitioners are eligible for compensation only in respect of 0.01 ares of property belonging to the 1st petitioner and that the other petitioners are eligible only for compensation as regards the improvements and constructions made in the other properties which are solely Government puramboke land. The case of the petitioners is that such properties acquired by the Government over and above the 1 sq.m. property belonging to the 1st petitioner are also properties belonging to the other petitioners as covered by their valid title deeds and the question as to whether such properties acquired by the Government over and above the 1 sq.m. property are Government puramboke land or whether they are properties belonging to the petitioners as covered by valid title deeds can be ascertained and found out only by an Advocate Commissioner who is assisted by a qualified private surveyor. The lower appellate court has dismissed Ext.P -5 application for appointment of Advocate Commissioner as per the impugned Ext.P -6 order dated 11.4.2016 mainly on the basis of the reasonings in para 9 of the impugned order which reads as follows:
(2.) Heard Sri.K.Sandesh Raja, learned counsel appearing for the petitioners and Sri.R.Padmaraj, learned Senior Government Pleader appearing for official respondents 1 to 3 and the learned Standing Counsel for KMRL appearing for the 4th respondent -Corporation.
(3.) It is common ground that the main issue to be decided in the Appeal Suit is as to the maintainability or otherwise of the suit. If the suit is ultimately held to be not maintainable, the mere order in appointing the Advocate Commissioner for ascertaining the factual points now sought in Ext.P -5 by itself will not in any way prejudice or injure the respondents/defendants in any manner. However, if the suit is held to be maintainable as per the final verdict in the Appeal Suit, then the rejection of the interim prayer of the petitioners herein for appointment of the Advocate Commissioner would seriously prejudice any claims as it would later be very difficult to find out the factual details and ground realties at a later stage. At any rate, the orders directing the appointment of an Advocate Commissioner will not in any manner seriously prejudice or injure the respondents/defendants. That apart, it has come out during the course of hearing that as against Ext.P -5 commission application, respondents had initially filed objections which were found to be faulty as it related to the facts of another case. Therefore, the respondents wanted to withdraw the initial objections and wanted to submit another objection in its place. Though the respondents had later submitted another objection as in Ext.P -7 in tune with the facts of this case, it is seen that they had omitted to withdraw the earlier objection. From a reading of the discussions in paras 1 to 8 of the impugned Ext.P -6 order, it is seen that the court below has mainly placed reliance on the earlier objections placed by the respondents herein which was only in relation to a entirely different case and not to this case and therefore the conssideration made in the impugned Ext.P -6 order is based on irrelevant factual aspects which are not germane to the facts of this case. Learned Government Pleader appearing for official respondents 1 to 3 and the learned Standing Counsel appearing for the 4th respondents has fairly not disputed to this crucial aspect of the matter. Moreover, the reasoning in para 9 of the impugned order that the application filed by the petitioner in the Original Suit was dismissed by the trial court, etc., is also factually wrong in as much as the said application filed by the petitioners in the Original Suit was never considered or disposed on merits. When the suit was dismissed as not maintainable, the application for appointment of Advocate Commissioner was also consequentially dismissed. Therefore, this aspect of the matter is also based on irrelevant and factually wrong aspects which are not germane to the crucial matter in issue. The respondents have no dispute regarding this aspect of the matter. The other reasoning in para 9 of the impugned Ext.P -6 order that the petitioners are challenging the acquisition proceedings by placing reliance on Ext.P -5 application for appointment of Advocate Commissioner is also based on irrelevant aspects of the matter. The learned counsel appearing for the writ petitioners submit that none of the petitioners are in any way challenging the acquisition of their properties and that they are not in any way standing against the defendants from acquiring their properties and that only dispute is that the properties more than the aforementioned 1 sq.m. of property belonging to the 1st petitioner was in fact been acquired in the impugned acquisition process and that the properties which are alleged by the respondents as Government puramboke land are in fact not Government puramboke land and are properties belonging to the petitioners as covered by their valid title deed and it is highly necessary to ascertain this factual plea put up by the petitioner and it is only for that purpose the petitioners have made interim prayer for appointment of Advocate Commissioner for ascertaining the factual aspects noted in Ext.P -5 application.