IN THE HIGH COURT OF KERALA AT ERNAKULAM 2024/KER/44490 PRESENT THE HONOURABLE MR. JUSTICE G. GIRISH WEDNESDAY, THE 19^TH DAY OF JUNE 2024 / 29TH JYAISHTA, 1946 OP(C) NO. 1580 OF 2022 AGAINST THE ORDER DATED 18.07.2022 IN I.A.No.1 OF 2020 IN OS NO.10 OF 2019 OF MUNSIFF-MAGISTRATE COURT, MANANTHAVADY PETITIONER/PLAINTIFF:

K.P. RADHAKRISHNAN S/O RAGHAVAN, AGED 56 YEARS, RESIDING AT THAYAMBA HOUSE, P.O KAVUMBHAGAM, THALASSERY, KANNUR DISTRICT, PIN 670 649 –

BY ADVS.

ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH)

M.K.SUMOD E.MOHAMMED SHAFI PRAJIT RATNAKARAN RAJ CAROLIN V.

RESPONDENTS/DEFENDANTS:

1 E.K THILAKAM W/O RAVEENDRAN, AGED 63 YEARS, RESIDING AT PUTHEN VEETTIL, MANANTHAVADY AMSOM, ARATTUTHARA DESOM, MANANTHAVADY.P.O, MANANTHAVADY TALUK, VAYANAD, PIN 670 645 –

2 CHALIL LAFTHASH S/O KUNHABDULLA, AGED 29 YEARS, RESIDING AT CHALIL, MANANTHAVADY AMSOM, ARATTUTHARA DESOM, MANANTHAVADY.P.O, MANANTHAVADY TALUK, VAYANAD, PIN 670 645 –

3 CHALIL MIRASH S/O MOIDU, AGED 35 YEARS, RESIDNG AT CHALIL MANANTHAVADY AMSOM, ARATTUTHARA DESOM, MANANTHVADY.P.O, MANANTHAVADY TALUK, VAYANAD, PIN 670 645 –

BY ADVS.

P.A.HARISH V.V.SURENDRAN(K/000150/1974)

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

19.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

G. GIRISH, J.

--------------------------------------

OP(C) No.1580 of 2022 -----------------------------------------

Dated this the 19^th day of June, 2024

JUDGMENT

Heard the learned counsel for the petitioner/plaintiff and the learned counsel representing the respondents/defendants.

2. The prayer in this petition filed under Article 227 of the Constitution of India is to call for the records in I.A.No.1 of 2020 in O.S.No.10 of 2019 of the Munsiff Magistrate Court, Mananthavady and to set aside Ext.P6 order passed by the learned Munsiff in an application filed to remit back the Commission Report prepared in the said suit.

3. The reasons stated by the petitioner for the remission of the Commission Report is that the said report and rough sketch dated 28.02.2019 are inconsistent with the title documents relied on by defendants 2 and 3, and the Commissioner has not perused the sketch submitted by the plaintiff along with the plaint. Another allegation raised by the petitioner is that the Commissioner has suppressed the construction of a new house in the property.

4. The learned Munsiff observed in the impugned order that the aforesaid reasons stated by the petitioner for the remission of the Commission Report and plan cannot be considered since there was no prayer for measurement of properties with reference to the title deeds and that there was no issue framed in respect of the identity of the suit property. The learned Munsiff further observed in the impugned order that considering the nature of the relief sought for in the suit, the only point to be decided was the physical possession of the plaintiff over the plaint schedule property.

5. It is true that in a suit for injunction simpliciter, the main issue to be resolved is the claim of the plaintiff relating to his possession over the suit property. However, if the defendants, in their written statements, put forward a defence which is likely to raise a doubt regarding the identity of the property claimed by the plaintiff, then the measurement of the property will become an inevitable requirement. In such cases, the Trial Court is bound to consider interim applications filed by the parties for the measurement of the properties on the basis of the titled deeds and other relevant land records and to have a Commission Report and plan identifying the respective properties claimed by the parties.

6. It appears from the nature of the contentions raised by the parties in the instant case, as well as from the submissions made by the learned counsel for the petitioner and the learned counsel for the respondent that the measurement of the properties in dispute with the help of a competent surveyor might be required for the resolution of the dispute between the parties. Henc