The petitioner-plaintiff has filed a suit for injunction in which the respondents-defendants entered appearance and claimed kudikidappu right. The petitioner points out that the property may be measured and demarcated to locate kudikidappu right property. It is pointed out that even assuming that the defendants have kudikidappu right, they are trying to trespass into the rest of property of the plaintiff. The respondents in turn also claimed certain extent of property by way of adverse possession and limitation. Whatever that be, under these circumstances, the petitioner filed I.A.No.611/2013 for issuance of a commission for measuring the property and for locating the kudikidappu property. 2. This Court is given to understand that the respondents who had entered appearance stated that they have no objection O.P.(Civil) No.1497/2013 2 in measuring the property even though they have raised various contentions including adverse possession and limitation. However, the court below ordered that there is no prayer for recovery of possession and fixation of boundary. So the prayer was disallowed.
3. After having heard the learned counsel for the petitioner and the learned counsel for the respondents, this Court feels that the court below was unjustified in dismissing the petition. The question is not whether there is prayer for fixation of boundary and recovery of possession. The claim of the plaintiff was that even assuming that the defendants had kudikidappu right, extent of property had to be demarcated. True the defendants claimed a portion of the property by adverse possession and limitation. That is a matter to be determined at the time of trial but it is necessary to determine the identity of the property claimed as kudikidappu right for proper disposal of the suit.
In the result, this petition is allowed and the impugned order is set aside. I.A.No.611/2013 is allowed and the court below shall depute a Commissioner from the said court who will O.P.(Civil) No.1497/2013 3 take the aid of a Surveyor and prepare plan and report. The respondents in the petition will also be allowed to file work memo which the Commissioner shall take into consideration while preparing the report and plan.
Sd/-
P.BHAVADASAN JUDGE smp