IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI RD MONDAY, THE 23 DAY OF SEPTEMBER 2024 / 1ST ASWINA, 1946 OP(C) NO. 2118 OF 2019 AGAINST THE ORDER IN IA NO.3196/2017 IN OS NO.219 OF 2013 OF ADDITIONAL MUNSIFF COURT, KOCHI PETITIONER:

GEORGE AGED 59 YEARS S/O.LATE ANTONY, THANNIKKOT HOUSE, ELANKUNNAPUZHA P.O, ERNAKULAM DISTRICT, PIN-682503 BY ADVS.

T.N.SURESH SMT.DHANUJA VETTATHU RESPONDENTS:

1 MARY AGED 63 YEARS W/O.MARTIN, NADUVILA VEETTIL ELANKUNNAPUZHA VILLAGE, KOCHI TALUK, PIN-682503.

2 SHYJU AGED 39 YEARS S/O.MARTIN, NADUVILA VEETTIL ELANKUNNAPUZHA VILLAGE, KOCHI TALUK, PIN-682503.

3 SHYBI AGED 37 YEARS D/O.MARTIN, NADUVILA VEETTIL ELANKUNNAPUZHA VILLAGE, KOCHI TALUK, PIN-682503.

4 PAUL SHIMSON AGED 35 YEARS S/O.MARTIN, NADUVILA VEETTIL ELANKUNNAPUZHA VILLAGE, KOCHI TALUK, PIN-682503.

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT (Dated this the 23^rd day of September 2024)

The petitioner has filed OS No.219/2013 before the Additional Munsiff’s Court, Kochi, against respondents/defendants for fixation of the southern boundary of the Plaint A schedule property with that of the properties of the defendants and for consequential injunction restraining the defendants from trespassing into the plaint A schedule property and commit any waste therein. According to the plaintiff, he is the absolute owner of 2.46 ares of land comprised in Sy. No.269/2 (old) Re.Sy No.146/9, 1.75 ares of land comprised in Sy. No.269/2 (old) Re.Sy. No.146/22 and 1.58 ares of land comprised in Sy. No.269/2 (old) Re.Sy. No.146/16 of Elankunnapuzha Village.

2. The defendants filed a written statement with a counterclaim for a mandatory injunction to remove the encroachments and construction done in the counterclaim A schedule property and recover counterclaim B schedule property. In the written statement, the petitioner clearly states that the resurvey has been done in the said land, and from the resurvey records, it can be seen that the plaint schedule properties item nos.1, 2 and 3 lies in different Sub Division Numbers. Ext.P3 is the extract of the Kerala Gazette, which shows that the resurvey has been finalised and published in the Gazette with respect to the Elankunnapuzha Village, Kochi Taluk.

3. An application for measurement of the plaint schedule property through an Advocate Commissioner and the Taluk Surveyor has been filed as I.A No.489/2014. After visiting the property, the Taluk Surveyor has given Ext.P4 letter to the Commissioner stating that since resurvey has already been effected in the said Village, it is better that the measurement is done with the resurvey and the old survey records. Thereafter, the Commissioner filed Ext.P5 interim report, wherein the Commissioner opined that the surveyor had informed him there were discrepancies while conducting measurements as per resurvey. It is better to measure the property as per the old survey and rely on the measurement shown in the title deeds of the plaintiff and defendant. He opined that the measurement has to be done as per the old survey records and title deeds.

4. Thereafter, Ext.P6 Commissioner report has been filed with a sketch. The measurement was done by the Commissioner as well as the Taluk Surveyor on the basis of the old survey records as well as the title deeds. The petitioner filed Ext.P7 application as IA No.3196/2017 for a direction to the Commissioner to measure the plaint schedule property on the basis of resurvey and resurvey records in terms of the title deed of the petitioner/plaintiff and prepare a report and sketch. The said application was dismissed as per Ext.P8 order dated 29.10.2018. Impugning the said order, the petitioner has approached this Court with this Original Petition under Article

227 of the Constitution of India.

5. Though notice was issued from this Court, the acknowledgment card did not return; therefore, an application for declaring the service as com