IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 31^ST DAY OF JANUARY 2022 / 11TH MAGHA, 1943 OP(C) NO. 74 OF 2019 OS 188/2013 OF MUNSIFF COURT, ALUVA PETITIONER/S:

1 NIXON VARGHESE AGED 56 YEARS S/O.VARGHESE, S/O.VARGHESE, MANJALY HOUSE, POOVATHUSSERY KARA, PARAKKADAVU VILLAGE, ALUA TALUK, ERNAKULAM DISTRICT, PIN-683579.(BOTH PETITIONERS ARE REPRESENTED BY THEIR POWER OF ATTORNY HOLDER SAIBY GEORGE, AGED 50, S/O.GEOERGE, IRIMPAN HOUSE, PARAKKADAVU KARA, PARAKKADAVU VILLAGE, PARAKKADAVU.P.O, ALUVA, ERNAKULAM DISTRICT, PIN-683579.

2 SHEELA NIXON AGED 54 YEARS W/O.NIXON, MANJALY HOUSE, POOVATHUSSERY KARA, PARAKKADAVU VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683579.(BOTH PETITIONERS ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER SAIBY GEORGE, AGED 50, S/O.GEORGE, IRIMPAN HOUSE, PARAKKADAVU KARA, PARAKKADAVU VILLAGE, PARAKKADAVU.P.O, ALUVA, ERNAKULAM DISTRICT, PIN-683579.)

BY ADVS.

VINOD RAVINDRANATH SMT.MEENA.A. SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR RESPONDENT/S:

1 JOY S/O.THARIYATH, AGE NOT KNOWN TO THE PETITIONERS, KACHAPPILLY HOUSE, POOVATHUSSERY KARA, PARAKKADAVU VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683579.

2 PARAKKADAVU GRAMA PANCHAYATH, PARAKKADAVU, REPRESENED BY ITS SECRETARY, KURUMASSERY, ALUVA, ERNAKULAM, PIN-683579.

3 PRESIDENT, PARAKKADAVU GRAMA PANCHAYATH, PARAKKADAVU, KURUMASSERY, ALUVA, ERNAKULAM, PIN-683579.

BY ADVS.

SRI.S.RENJITH SRI.B.JAYASANKER THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON

26.10.2021, THE COURT ON 31.01.2022, DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 31^st day of January, 2022 Petitioners are additional defendants 3 and 4 in O.S.No.188 of 2013 on the file of the Munsiff's Court, Aluva. The suit is filed by the first respondent seeking a declaration that he is the owner of the plaint schedule properties admeasuring 1.30 Ares, comprised in old Sy.No.299/3 described as 'nalathu Vazhi' in revenue records and alleged to be vested with the Parakadavu Grama Panchayat. The suit was filed with only the Panchayat and its President as defendants. The petitioners got themselves impleaded as additional defendants 3 and 4, contending that the plaint schedule property is a 10 feet wide, which has been in existence from 1950 onwards. The road starts from the PWD road and reaches up to the property of the petitioners and their neighbour. The road is not part of the plaintiff's property and an earlier suit filed by the plaintiff, with respect to the same subject matter has been dismissed. On the impleadment application being allowed, petitioner filed written statement along with a counterclaim for fixing the southern boundary of counterclaim B schedule road or northern boundary of the plaintiff's property, to declare the counterclaim B schedule as not part of the plaintiff's property, for a mandatory injunction directing the plaintiff to demolish the structures in counterclaim B schedule and for permanent prohibitory injunction, restraining the plaintiff from disturbing the peaceful enjoyment of B schedule way.

2. At the instance of the petitioners, an Advocate Commissioner was appointed and the property identified and demarcated with the aid of a private surveyor. Being dissatisfied with the report and plan, petitioners filed Ext.P5 application for remitting the Commissioner's report. Learned Munsiff dismissed the application by Ext.P6 order. Hence, this original petition.

3. Heard.

4. Learned Counsel for the petitioners submitted that the trial court committed gross illegality by refusing to remit the Commissioner's report and plan. According to the Counsel, the essential aspects pointed out in the commission application were not ascertained and reported. The Commissioner was required to measure the property based on title deeds bearing No.1097/1960 and 501/1971, but the measurement was done without reference to the documents and the extent of 73 cents mentioned in the report and plan was not demarcated separately. The specific case of the