IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 1^ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 OP(C) NO. 532 OF 2021 AGAINST THE ORDER DATED 11.01.2021 IN IA NO.991/2020 IN OS NO.430 OF 2001 OF MUNSIFF’S COURT, KOTTARAKKARA PETITIONER/PETITIONER IN IA/PLAINTIFF IN OS:

ASHOK KUMAR, AGED 50 YEARS S/O. DIVAKARAN, CHEPRA VEEDU, KADAIKODU MURI, KAREEPRA VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT.

BY ADV K.V.ANIL KUMAR RESPONDENTS/RESPONDENTS IN IA/DEFENDANTS IN OS:

1 SURENDRAN, S/O. NARAYANAN, CHEPRA POIKAYIL VEEDU, KADAIKODU MURI, KAREEPRA VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT, PIN-691 505.

2 JAGADEESAN, AGED 48 YEARS S/O. SURENDRAN, CHEPRA POIKAYIL VEEDU, KADAIKODU MURI, KAREEPRA VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT, PIN-691 505.

BY ADVS.

V.JAYAPRADEEP ANN SUSAN GEORGE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

VIJU ABRAHAM, J.

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O.P.(C) No.532 of 2021 .................................................................

Dated this the 1^st day of August, 2024

JUDGMENT

Petitioner has approached this Court challenging Ext.P7 order passed by the Munsiff’s Court, Kottarakkara in I.A.No.991 of 2020 in O.S.No.430 of 2001.

2. Petitioner is the plaintiff in O.S.No.430 of 2001 on the file of the Munsiff’s Court, Kottarakkara and the respondents herein are the defendants. The suit is filed for declaration of title and possession of the plaintiff over the plaint schedule property and also seeking permanent prohibitory injunction. The suit was originally decreed as per Ext.P3 judgment. Challenging the same an appeal was filed as A.S.No.83 of 2005 before the Sub Court, Kottarakkara and the appeal was allowed by remanding back the suit for fresh consideration on the specific finding that there is some infirmity between the commissioner’s plan and re- survey plan regarding the boundaries of the plaint schedule property. Accordingly the suit was re-opened and another commission application was filed and the same was allowed and the commissioner has filed Ext.P5 report. Since the petitioner has serious grievance regarding the second commission report, he has filed a detailed objection against the same. The grievance raised by the petitioner is that in the second commission report the plaint schedule property is not properly located and hence it is not possible to reach a proper and fare decision in the suit. For avoiding vagueness petitioner prayed that a fresh survey needs to be conducted on the basis of prior deeds and old survey plans also and for the same Ext.P6 application has been filed which was dismissed as per Ext.P7 order, which is assailed in this original petition. The specific case of the petitioner is that as regard the second commission report is concerned, the petitioner has serious grievance as it has considerable changes from the first plan. It is in the said circumstances that Ext.P6 application was submitted by the petitioner.

3. A perusal of Ext.P7 would reveal that the requests made by the petitioner has not been properly considered and Ext.P6 application has been dismissed by a two line order stating that the suit is of the year 2001 and the present petition is only to protract the trial. It is seen that the suit was decreed as early as 2004 and in appeal it was remitted back for re-consideration in the year 2016 and only thereafter the petitioner has filed an application as Ext.P6 for appointment of a commissioner along with a surveyor as he was aggrieved by Ext.P5 commission report. Since none of the aspects raised by the petitioner was properly considered while passing Ext.P7 order, I am of the opinion that the same ought to be re-considered strictly on merits. In the above circumstances, I am of the view that Ext.P7 order is liable to be set aside. Accordingly Ext.P7 order is set aside with a consequential direction to the Munsiff’s Court, Kotta