IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI THURSDAY, THE

27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946 O.P.(C) NO.2982 OF 2024 (AGAINST THE ORDER/JUDGMENT IN OS NO.1413 OF 1990 OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA)

PETITIONERS/DEFENDANTS 2, 3, & 13 TO 15:

1 PRABHAKUMARI, AGED 57 YEARS, D/O REGHUPATHY, KIZHAKKEKARA VEEDU, ANAVOOR DESOM, ANAVOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN 695 124 –

2 UDAYAKUMAR, AGED 55 YEARS S/O VELUKUTTY, KIZHAKKEKARA VEEDU, ANAVOOR DESOM, ANAVOOR VILLAGE, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM, PIN 695 124 –

3 SINDHU, AGED 42 YEARS, W/O SURESH KUMAR, KIZHAKKEKARA VEEDU, ANAVOOR DESOM, ANAVOOR VILLAGE, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM, PIN 695 124 –

4 SUJITH, AGED 25 YEARS, S/O SURESH KUMAR, KIZHAKKEKARA VEEDU, ANAVOOR DESOM, ANAVOOR VILLAGE, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM, PIN 695 124 –

5 SOORAJ, AGED 23 YEARS, S/O SURESH KUMAR, KIZHAKKEKARA VEEDU, ANAVOOR DESOM, ANAVOOR VILLAGE, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM, PIN 695 124 –

BY ADVS.

ARUN V.G. (K/795/2004)

V.JAYA RAGI R.HARIKRISHNAN (KAMBISSERIL)

NEERAJ NARAYAN A.S.SALMA RESPONDENTS/COUNTER PETITIONERS & PLAINTIFFS:

1 OMANA, W/O RASALAYYAN, ANANTHA BHAVAN, KALANGAPPARA, KOVIL NEDUGODE DESOM, ANAVOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN 695 124 –

2 MOHANAN, S/O GEORGE, VINAYA BHAVAN, KALANGAPPARA, KOVIL NEDUGODE DESOM, ANAVOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN 695 124 –

3 JAYAKUMAR, S/O GEORGE, VINAYA BHAVAN, KALANGAPPARA, KOVIL NEDUGODE DESOM, ANAVOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN 695 124 –

BY ADVS.

C.S.MANILAL S.NIDHEESH(K/1061/2007)

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2024, THE COURT ON 27.02.2025 DELIVERED THE FOLLOWING:

JUDGMENT (Dated: 27^th February, 2025)

Petitioners are the defendants No.2, 3, and 13 to 15 in O.S.No.1413 of 1990 on the files of the Munsiff Court, Neyyattinkara. Respondents are the plaintiffs therein. The suit was filed for a declaration of title, fixation of boundary, and consequential injunction.

2. The petitioners filed a detailed written statement denying the plaintiffs’ claim. The trial court dismissed the suit on 30.09.1993 because the plaint schedule description was incorrect. The plaintiffs challenged the said decree and judgment in A.S.No.285 of 1994 of the Sub Court, Neyyattinkara. The first appellate court dismissed the appeal on merits. The plaintiffs, therefore, approached this Court by filing S.A.No.648 of 2008. By judgment dated 07.11.2029, this Court set aside the decree and judgments of both the court below and remanded the matter to the trial court for fresh trial and disposal after identification of the plaint schedule property through Survey Commission.

3. After remand, the Advocate Commissioner and Surveyor were appointed to identify and measure out the plaint schedule property and fix the identity and boundary. The Commissioner, along with the Surveyor, filed a report and plan on 07.09.2024. According to the petitioners, the Commissioner’s report and plan are wrong; therefore, the petitioners examined the Advocate Commissioner and Surveyor before the Court. Therefore, the petitioners filed I.A.No.22 of 2024 seeking an order setting aside the Commissioner’s report & plan and also seeking the appointment of a senior member of the Bar as the Advocate Commissioner and a qualified digital survey team to make available a digital survey plan of the plaint schedule property. The trial court thereafter posted the matter for judgment on 21.12.2024 without disposing of I.A.No.22 of 2024. Therefore, the petitioners approached this court for a direction to the Munsiff to dispose of Ext.P6 application on merits by considering the law laid down by this Court in Sabu v. Sasi [2022 (2) KHC 435].

4. On 20.12.2024, this Court issued notice to the respondent by speed post. Taking note of the averment in the statement of fact that without passing orders on I.A.No.22 of 2024, the c