IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 3^RD DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943 OP(C) NO. 1734 OF 2018 AGAINST THE ORDER/JUDGMENT IN OS 299/2013 OF MUNSIFF COURT, VARKALA PETITIONERS/DEFENDANTS 1 TO 3:

1 LATHA SURENDRAN, W/O.LATE SURENDRAN, ANANDAVILASOM BUNGLOW, EDAVA VILLAGE, VARKALA.

2 ROHINI SURENDRAN, D/O.LATE SURENDRAN, ANANDAVILASOM BUNGLOW, EDAVA VILLAGE, VARKALA.

3 RAKESH SURENDRAN, S/O.LATE SURENDRAN, ANANDAVILASOM BUNGLOW,EDAVA VILLAGE,VARKALA.

BY ADVS.

SRI.M.R.ANANDAKUTTAN SRI.MAHESH ANANDAKUTTAN SMT.M.A.ZOHRA RESPONDENTS/PLAINTIFFS & DEFENDANT 4:

1 K.S. ANSARI S/O.LATE M.K.SAINUDEEN,KUPPAVILAKOM VEEDU, EDAVA VILLAGE,VARKALA-695 141.

2 K.A.HAFSA BEEVI, D/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141.

3 K.S.NAZEER, S/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141. 4 K.A.JASMINE D/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE,VARKALA-695 141.

5 K.A.NASSIM, S/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141.

6 K.A.SURIYA, D/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141.

7 K.S.ZAKARIYA, S/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141.

8 K.A.SABEENA, D/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141.

9 K.A.HASEENA, D/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141.

10 K.A.THASNIYA, D/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141.

11 K.A.HAFSANA, D/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141.

12 K.A.YASIR, S/O.LATE M.K.SAINUDEEN, KUPPAVILAKOM VEEDU, EDAVA VILLAGE, VARKALA-695 141.

BY ADV RAJESH M.R.

THIS OP (CIVIL) HAVING FINALLY HEARD ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The petitioners herein are the defendants in O.S.No.299/2013 on the file of Munsiff Court, Varkala. They are aggrieved in the matter of dismissal of I.A.No.679/2018 filed by them to appoint a commissioner with assistance of surveyor to measure out the disputed properties based on the litho plan, old survey plan, revenue records and in terms of the title deed, though the prayers moulded in a complex manner, by the petitioners.

2. Going by the plaint averments and the prayers therein, it could be gathered that the suit was filed for declaration of title, joint possession and also for fixation of boundary. Thus, it appears that measurement and location of the properties by preparing plan are absolutely necessary to address the grievance of the plaintiffs also. In such a suit, the plaintiffs not taken any steps to appoint a survey commissioner, till this date. Despite that, the defendants filed this application for which no objection raised by the plaintiffs before the trial court. However, the court below dismissed the same.

3. The learned counsel for the petitioners argued to substantiate the contentions raised in the commission application and also to upset the verdict made by the learned Munsiff in the said case. She canvassed relief as prayed for.

4. Adv. Rajesh.M.R, who appeared for the respondents would submit that he will not stand in the way of allowing the commission application and he prayed for liberty for the petitioners also, to have the same commissioner to measure out matters, which are necessary to decide the dispute in tune with the plaint averments.

5. This submission appears to be convincing. In such view of the matter, I am inclined to set aside the order impugned.

6. In the result, commission application I.A. No.679/2018 in O.S.No.299/2013 stands allowed and the trial court is directed to appoint commissioner and surveyor and fix their batta for getting the report. It is specifically ordered that the plaintiffs have the liberty either to file a petition mentioning the matters to be located for and on behalf of the plaintiffs also. Otherwise the plaintiffs can give a work memo to the commissioner for measuring ou