1 O.P.(C) NO.820 OF 2025 2025:KER:26884 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 O.P.(C) NO.820 OF 2025 (AGAINST THE ORDER/JUDGMENT DATED 15.02.2025 IN OS NO.190 OF 1986 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM) PETITIONERS/RESPONDENTS 1 AND 2/DEFENDANTS 1 AND 2: 1 SOSHAKUTTY, AGED 76 YEARS, W/O. LATE JACOB, PALATHINKAL HOUSE, PARAVOOR MURI, MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN – 682 312 2 MONI P. JACOB, AGED 48 YEARS, S/O.LATE JACOB, PALATHINGAL HOUSE, PARAVOOR MURI, MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN – 682 312 BY ADV SHIJU VARGHESE RESPONDENTS/PETITIONER & RESPONDENT NO.3/PLAINTIFF & DEFENDANT NO.3: 1 CHACHAMMA, AGED 74 YEARS, W/O. LATE CHERIYAN, EDAVAZHIKKAL HOUSE, KUZHIYARA, THIRUVANIYOOR P.O., THIRUVANIYOOR VILLAGE, KANAYANNOOR TALUK, PIN – 682 312 2 ST. THOMAS JACOBITE SYRIAN ORTHODOX CHURCH, PARAVOOR, PARAVOOR MURI, MANIKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN – 682 312 BY ADVS. JAGADEESH K V.RENJU(K/2317/1999) NIKHEL K GOPINATH(K/000352/2016) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.3.2025, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING: 2 O.P.(C) NO.820 OF 2025 2025:KER:26884 JUDGMENT (Dated: 28th March, 2025) This original petition is filed to call for records leading to Ext.P11 order in I.A.No.1 of 2022 in FDA No.3079 of 2016 in O.S.No.190 of 1986 of the Principal Munsiff Court, Ernakulam, and to direct the Principal Munsiff to consider Ext.P10 work memo during the final decree proceedings in I.A.No.1 of 2022 in FDA No.3079 of 2016 in O.S.No.190 of 1986. 2. The suit was filed for partition of 10 cents of land situated in Sy.No.18/2C of Manakunnam Village. A preliminary decree was passed on 09.01.1987; thereafter, the final decree application was filed, and the commissioner was appointed to measure and demarcate the property. The trial court appointed the Advocate Commissioner to measure the property with the 3 O.P.(C) NO.820 OF 2025 2025:KER:26884 assistance of the Village Officer, Manakunnam Village. The Advocate Commissioner submitted a report. 3. The petitioner thereafter filed an application to set aside the commissioner's report as I.A.No.13 of 2024 in I.A.No.1 of 2022 in FDA No.3079 of 2016 in O.S.No.190 of 1986. An objection was filed to set aside the commissioner's report. 4. The petitioner thereafter filed a review petition in the preliminary decree as R.P.No.28 of 2024, and a work memo to be noted by the Advocate Commissioner as Ext.P10. No objection was filed by the respondents. The court below dismissed the same as per Ext.P11. The reason stated is that the commissioner has been appointed to measure the plaint schedule property in accordance with the preliminary decree. The work memo submitted by respondents 1 and 2 does not have any bearing on the final decree 4 O.P.(C) NO.820 OF 2025 2025:KER:26884 application. The commissioner was directed to inspect the property and file a report as ordered earlier. 5. The counsel for the petitioner submits that the petitioner has filed Ext.P10 work memo, to identify the property covered by the sale deed and to report whether there is any encroachment into his property when a decree was passed by the court below. The commissioner was appointed in the final decree application to identify the property and to divide it by metes and bounds as per the original decree, and as per the final decree. The commissioner will have to execute the same in accordance with the preliminary as well as the final decree. Therefore, the court below has directed the commissioner, only to identify the plaint schedule property and divide the same in accordance with the preliminary decree. It is made clear that 5 O.P.(C) NO.820 OF 2025 2025:KER:26884 the petitioner will be given liberty to file objection to the commissioner's report. This Original Petition (C) is disposed of as above. Sd/- BASANT BALAJI, JUDGE ss 6 O.P.(C) NO.820 OF 2025 2025:KER:26884 APPENDIX OF OP(C) 820/2025 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PRELIMINARY DECREE DATED 09.01.1987 IN OS NO. 190/1986 OF THE MUNSIFF’S COURT, ERNAKULAM Exhibit P2 TRUE COPY OF THE FINAL DECREE APPLICATION, FDA NO.3079/2016 DATED 01.04.2016 Exhibit P3 TRUE COPY OF THE SALE DEED NO.2595/1976 DATED 28.09.1976 OF THE THRIPPUNITHURA SRO Exhibit P4 TRUE COPY OF THE SALE DEED BEARING NO.3978/1985 DATED 16.10.1985 OF THRIPPUNITHURA SRO Exhibit P5 TRUE COPY OF THE COMMISSION REPORT DATED 23.02.2024 FILED IN IA NO.1/2022 IN FDA NO.3079/2016 IN OS NO. 190/1986, WITHOUT SKETCH Exhibit P6 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 08.02.2023 Exhibit P7 TRUE COPY OF IA NO.13/2024 IN IA NO.1/2022 IN FDA NO.3079/2016 IN OS NO. 190/1986 DATED15.11.2024 Exhibit P8 TRUE COPY OF THE OBJECTIONS DATED 03.12.2024 FILED BY THE 1ST RESPONDENT TO THE COMMISSION REPORT IN FDA NO.3079/2016 IN OS NO. 190/1986 DATED 03.12.2024 Exhibit P9 TRUE COPY OF SETTING ASIDE OF COMMISSION REPORT BY ORDER DATED 23.01.2025 IN IA NO. 13/2024 IN IA NO.1/2022 IN FDA NO.3079/2016 IN OS NO. 190/1986 Exhibit P10 TRUE COPY OF THE WORK MEMO DATED 06.02.2025 IN IA NO.1/2022 IN FDA NO.3079/2016 IN OS NO. 190/1986 Exhibit P11 TRUE COPY OF THE ORDER IN IA NO.1/2022 IN FDA NO.3079/2016 IN OS NO. 190/1986 7 O.P.(C) NO.820 OF 2025 2025:KER:26884 Exhibit P12 A TRUE COPY OF THE JUDGMENT IN NALINI V. A. G. ABRAHAM AND OTHERS 2012 (2) KHC 843 Exhibit P13 A TRUE COPY OF THE JUDGMENT IN EASWAR GANGARAM PATTIL V. UDUPPI MADHAVA MANDIRAM TRUST REPORTED IN 2012 (4) KHC 100 (DB)