SOMAN AND ANR. Vs. SUKUMARAN AND ANR.

JUDGEMENT

(1.) The prayer in this Original Petition (Civil) is as follows:

(2.) Heard Sri.Subhash Syriac, the learned counsel appearing for the petitioners/defendants 1 and 2. In the nature of the orders proposed to be passed in this petition, notice to the respondents/plaintiff will stand disposed with.

(3.) The challenge made by the petitioners in this original petition is against the impugned Ext.P13 common order of the trial court, dismissing Ext.P9 application filed for appointing an Advocate Commissioner to survey and locate the boundaries of the counter claim property of the petitioners/defendants 1 and 2 and Ext.P7 application for either remitting or setting aside Ext.P5 commission report. The petitioners herein are the applicants/petitioners in those applications and the defendants 1 and 2 in O.S.No.61/2014 of the Munsiff's Court, Punalur. The respondents herein are the plaintiffs in the said suit and the respondents in those applications. The suit has been filed by the respondents herein seeking fixation of boundary and injunction. The petitioners had filed written statement denying the title, identity and boundaries of the plaint schedule property and had filed counter claim for injunction restraining the respondents from trespassing into the counter claim property. The respondents herein had taken a survey commission to measure out the plaint schedule property and the Advocate Commissioner had filed Ext.P5 report dated 28/7/2017. It is the case of the petitioner that despite the request to locate the counter claim property at the time of the visit of the Advocate Commissioner, the counter claim property was not identified and located in Ext.P5. Later, this case was listed for trial on 14.2.2018 and on 5.2.2018 the petitioners herein has filed Ext.P6 objection to Ext.P5 and had filed Ext.P7 application to remit Ext.P5 and to direct the Advocate Commissioner to rectify the mistake in Ext.P5 or to set aside the same etc. That in addition, the petitioners had filed Ext.P9 application for appointing an Advocate Commissioner to survey and identify the counter claim property. An application was also filed as Ext.P11 to remove the case from the list. That the court below has now dismissed all the applications by Ext.P13 common order dated 19.2.2018. One of the main contentions raised by the petitioner is that the court below has failed to notice that the plaint item property and the counter claim property are situated in the same survey number and that the Advocate Commissioner should have identified the counter claim property. Further that the court below has failed to notice the observation of the Advocate Commissioner in Ext.P5 report that as per the Re-survey records the plaint schedule property is situated at the larger extent of land and it is in the joint Thandaper names of the 1st respondent and 4 others. It is also urged that in Ext.P8 objection filed by the respondents, they have not raised any serious objection and that their alternate plea was that a new commission may be appointed for calling a fresh report and plan.