In injunction lawsuits, property location must be substantiated through proper evidence rather than through unnecessary commissions, reinforcing the procedural correctness of lower court decisions.

JUDGMENT

Aggrieved by Ext.P12 order passed in I.A No.7/2022 in O.S No.64/2022 by the Court of the Munsiff, Peermade, the third defendant in the suit has filed the original petition. The first respondent is the plaintiff and the respondents 2 and 3 are the defendants 1 and 2 in the suit.

2. The relevant antecedent facts leading to Ext.P12 order are:

(i) The first respondent has filed the suit against the petitioner and the respondents 2 and 3, seeking a decree of injunction, to restrain them from trespassing into the plaint schedule property and destroying any boundary marks and obstructing the peaceful enjoyment of the property.

(ii) Along with the suit, the first respondent filed I.A No.2/2022 and Ext.P2 order of temporary injunction was passed.

(iii) Ext.P3 is the commission report and sketch filed in the suit.

(iv) The petitioner has also filed O.S No.56/2022 before the same court, against the first respondent, for a decree of injunction. The first respondent has resisted the suit through Ext.P5 written statement.

(v) The first respondent amended the plaint by incorporating an averment that the plaint schedule property is situated in Manjumala village instead of Peermade village.

(vi) In order to disprove the averment that the property is situated in Manjumala village, the petitioner filed I.A No.7/2022 (Ext.P10) to take out a survey commission. The application was resisted by the first respondent through Ext.P11 objection.

(vii) The court below, by the impugned Ext.P12 order, dismissed Ext.P10 application.

(viii)Ext.P12 order is ex-facie illegal and unsustainable in law. Hence the original petition.

3. Heard; Sri.K.Rajesh Kannan, the learned counsel appearing for the petitioner, on admission.

4. The point is whether there is any illegality in Ext.P12 order.

5. Indisputably, Ext.P1 plaint is instituted for injunction simplicitor. The petitioner has also instituted O.S.No.56/2022 before the same court against the first respondent for an identical relief.

6. During the pendency of the proceedings, the first respondent has amended the plaint by correcting the village as ‘Manjumala’ village instead of ‘Peermade’.

7. According to the petitioner, the plaint schedule property is situated in ‘Peermade’ village. In order to establish this aspect, he filed Ext.P10 application for a survey commission. However, the court below, by the impugned Ext.P12 order, has rejected the application. 8. InMadhavan v. Narayanankutty and others [2019 (4) KHC 854], this Court has categorically held that in a suit for injunction simplicitor, there is no necessity to take out a survey commission, unless the court feels that such an exercise is required. The above position is re-iterated by this Court inAbdul Jaleel K.M. v. Thazhe Iravath Rabiya and others [2022 (4) KHC

230].

9. In the case on hand, all that the petitioner wants to establish is that the plaint schedule property is situated in ‘Peermade’ and not Manjumala village. This Court is of the view, to establish the above aspect, there is no necessity to take out a survey commission.

10. It is trite; an Advocate Commissioner is an officer of the Court and not an agent of the party, to elicit evidence at the beck and call of the parties.

11. If the petitioner has a case that the plaint schedule property is situated in a different village, it is up to the petitioner to, at the appropriate stage, produce the revenue records and prove the aspect, and not through an Advocate Commissioner.

12. On an analysis of the pleadings and materials on record, and the impugned order, I do not find any circumstances or grounds to hold that the court below has overstepped its authority, warranting interference by this Court under Article 227 of the Constitution of India .

Reserving the right of the petitioner to prove that the property is not situated in the village as averred in the plaint, as know in law, the original petition is dismissed.

Sd/-

C.S.DIAS ma/ 02.3.2023 JUDGE APPENDIX OF OP(C) 546/2023 PETITIONER EXHIBITS Exhibit P1 TRU