BIJU SEBASTIAN v. V.M. MAMMOOTTY

Acopy of I.A.2225 of 2007 was produced by petitioner as Ext.P5.Ext.P5 shows that in his affidavit petitioner stated that as survey stones were not found available to identify property, petitioner was searching for records and while so, Court directed petitioner to produce survey records and petitioner approached the Surveyor, but could not get the documents and therefore documents could not be produced. It was contended that when the case was called on 31.7.2007 his counsel could not represent and therefore Court closed the commission application and hence the order is to be reviewed. Learned Munsiff, under Ext.P4 order, dismissed the application finding that inspite of direction petitioner did not produce the records to enable the commissioner to identify the property and did not even take the commissioner even once to the property. This petition is filed challenging that order. 4. Learned counsel argued that the petitioner was trying to get the survey records to enable identification of the property WP(C)30938/073and learned Munsiff should have reviewed the earlier order and proper identification is absolutely necessary to resolve the dispute involved in the suit.

5. Being a suit for recovery of possession and prohibitory injunction, identification of the property is a must. Itis on satisfying that there should be proper identification, learned Munsiff to appoint a commission. It is also true that the property cannot be identified without producing the relevant records. Learned Munsiff was compelled to close the commission application on the failure of the petitioner to produce the records. Even when Ext.P4 order was passed, petitioner did not produce the relevant records before the learned Munsiff. Insuch circumstances it cannot be said that Ext.P4 order is illegal. But considering the fact that a report and plan are necessary for resolving the disputes involved in the suit, an opportunity is granted to the petitioner to make available the relevant records to the Court so that commissioner could be directed to identify the property. Though learned counsel appearing for petitioner argued that Taluk Surveyor should be appointed, as petitioner did not challenge the order passed by learned Munsiffappointing a private Surveyor inspite of a Taluk Surveyor, WP(C)30938/074petitioner is not entitled to seek such a direction in this petition where Ext.P4 order alone is challenged.

The learned Munsiff is therefore directed to restore the commission application and to give necessary instructions to the commissioner to identify the property, if petitioner makes available the relevant documents within three weeks from today, failing which learned Munsiff to proceed with the trial. M. SASIDHARAN NAMBIAR, JUDGEOkb/-