The court emphasized the necessity of proving possession over property, notwithstanding discrepancies in measurements.

JUDGMENT

The challenge in this Original Petition is to the order dated 09.10.2017 in I.A.No.2955/2017 in O.S.No.187/2010 on the file of the Additional Munsiff’s Court-I, Neyyattinkara. The petitioner is the plaintiff in the suit. The plaintiff filed the suit for a permanent prohibitory injunction to restrain the defendant from trespassing upon the plaint schedule property or committing any waste therein. The Trial Court appointed a Commissioner to conduct a local investigation. The Commissioner prepared Ext.C1 series, report, plan and a rough sketch.

2. The plaintiff wanted to depute another Commissioner to measure the property based on the title deed. The learned Magistrate dismissed the application holding that as the Commissioner has identified the property based on the description in the plaint, there was no requirement for deputing another Commissioner. This order is under challenge in this Original Petition.

3. I have heard the learned counsel for the petitioner.

4. During the course of proceedings, the respondent died. The petitioner has taken steps to implead the legal representatives of the deceased respondent. Notice to additional respondent Nos. 2 and 3, the proposed legal representatives, have been served. Notice to the proposed additional respondent No.4 has not been served. Having regard to the nature of the order I propose to pass in this case, notice to additional respondent No.4 is dispensed with.

5. The learned counsel for the petitioner submitted that the extent of the plaint schedule property is 13 cents. But the Commissioner reported that the plaint schedule property has an extent of 10.378 cents alone. It is submitted that the Commissioner ought to have measured the property as per the title deed which depicts an extent of 13 cents including the channel bunds. The Commissioner has excluded the extent of the channel which passes through the plaint schedule property.

6. The respondent resisted the application on the ground that there was no prayer for measurement of the property as per the descriptions in the title deed and that the Commissioner identified the property based on the plaint schedule descriptions.

7. The Commissioner was examined by the Trial Court. The Commissioner deposed that the property within the eluka in the plaint schedule description is depicted in Ext.C1(a). The Commissioner added that the difference in Exts.C1(a) and C2(a) arose when the former was measured as per resurvey records. The Commissioner stated that she relied on the lie of the property to identify the plaint schedule property.

7. The suit is for injunction simpliciter. The possession of the property by the plaintiff is the essential factor to be considered. The Trial Court rightly held that whatever be the lie of the property as per the description in the title deed or resurvey, the actual possession over the property is required to be proved. The Trial Court further held that, even if the measurements in Ext.C1(a) show deficiency in the extent, the plaintiff is at liberty to prove that he is in possession of the property to the east of the channel by other means.

8. Having regard to the grounds canvassed, this Court is of the view that the petitioner failed to establish any ground to set aside Ext.C1 series, report, plan and sketch. Therefore, the relief to depute a new Commissioner cannot be sustained. However, the petitioner is at liberty to establish his possession by other means as held by the Trial Court.

The Original Petition lacks merits, and it stands dismissed.