IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 WP(C).No. 335 of 2009(M) PETITIONER: K.R. SAROJAM, AGED 57, W/O. VKRAMAN PILLAI, SAROJA BHAVAN, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENTS: 1. SAVITHRI AMMA, AGED 67, D/O. KAMALAKSHI AMMA, JAYALAKSHMI BUNGLOW, THAZHAMEL MURI, ANCHAL VILLAGE, ANCHAL P.O.. 2. JAYASENAN PILLAI, AGED 47, S/O. BALAKRISHNA PILLAI, INDUSREEYIL, THAZHAMEL MURI, ANCHAL VILLAGE, ANCHAL P.O.. 3. IRISHIKESAN NAIR, AGED 44, S/O. BALAKRISHNA PILLAI, REVATHIYIL, PANCHAYAMCHERI, ANCHAL VILLAGE, ANCHAL P.O.. 4. RAJAN, AGED 41, S/O. BALAKRISHNA PILLAI, SINDUJAYIL, THAZHAMEL,ANCHAL VILLAGE, ANCHAL P.O.. 5. PRASANNAKUMARAN NAIR, AGED 38, S/O. BALAKRISHNA PILLAI, JAYALAKSHMI BUNGLOW, THAZHAMEL MURI, ANCHAL VILLAGE, ANCHAL P.O.. 6. ARUNKUMAR, AGED 34, S/O. BALAKRISHNA PILLAI, JAYALAKSHMI BUNGLOW, THAZAMEL MURI, ANCHAL VILLAGE, ANCHAL P.O. 7. VIKRAMAN PILAI, AGED 65, S/O. VELAYUDHAN PILLAI, POLUNNAL PUTHEN VEEDU, ANCHAL VILLAGE, ANCHAL P.O. R7 BY ADV. SRI.SELJUM P.EMMANNUEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN O.S.NO.30/2004. EXT.P2 TRUE COPY OF COMMISSION APPLICATION NUMBER I.A.NO.2747/2005. EXT.P3 TRUE COPY OF JUDGMENT DATED 29.3.2006 IN W.P.(C) NO.9481/2006. EXT.P4 TRUE COPY OF JUDGMENT DATED 1.7.2008 PASSED IN' W.P.(C)NO. 15820/2008. EXT.P5 TRUE COPY OF ORDER DATED 4.10.2008 PASSED IN I.A.NO.2747.2005. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 335 OF 2009M ------------------------------------------------------ Dated this the 6th February, 2009 JUDGMENT The additional third defendant in O.S.No.30 of 2004, on the file of the Court of the Munsiff of Punalur, has filed this Writ Petition challenging Ext.P5 order dated 4.10.2008 in I.A.No.2747 of 2005, by which the court below appointed K.Suresh Kumar as the Commissioner. 2. The petitioner was originally not a party to the suit. She is the wife of one of the defendants in the suit. She got herself impleaded in the suit by filing I.A.No.1152 of 2006. As per the order in I.A.No.2747 of 2005, a Commissioner was appointed. The petitioner filed I.A.No.1153 of 2006 to review the order passed by the court below. After allowing the application for impleading filed by the petitioner, the court below reviewed the order in I.A.No.2747 of 2005. W.P.(C) No.15820 of 2008 was filed by the first respondent herein challenging that order. This Court disposed of the Writ Petition as per Ext.P4 judgment dated 1.7.2008. In Ext.P4 judgment it was held thus: “Being a suit for fixation of boundary, appointment of a commission to prepare a plan demarcating the plaint schedule property is absolutely necessary. Petitioner is claiming title to the plaint schedule property based on the W.P.(C) NO. 335 OF 2009 :: 2 :: partition deed entered into by their predecessor and the second respondent. First respondent is claiming title to a portion of the property, as per a Gift deed executed by the second respondent, allotted to second respondent under the same partition deed. Therefore, for proper resolution of the dispute, it is necessary to identify the property with reference to the title deeds, whereunder predecessor-in-interest of plaintiff and also second respondent obtained separate rights and the property covered by the Gift deed, executed by the second respondent in favour of the first respondent. Writ petition is allowed. Learned Munsiff is directed to appoint the same Commissioner to identify the plaint schedule property, the property belonging to first respondent under the Gift deed executed by second respondent, as well as the property allotted to second respondent under the partition deed. As it is submitted that petitioner has already deposited the commission bata, at present, there is no necessity to deposit bata again. If necessary, court can pass appropriate orders later, on the commission bata to be paid by the petitioner.” 3. After Ext.P4 judgment was passed by this Court, the court below passed the order impugned, wherein it was noticed that the Commissioner appointed earlier was not willing to act as the Commissioner. Hence K.Suresh Kumar was appointed as the Commissioner. 4. The petitioner does not have any grievance in appointing Advocate Suresh Kumar as the Commissioner. The grievance of the petitioner is that it is not necessary to measure the property of the petitioner and that in between the plaint schedule property and her property, there is a panchayat road in existence. These are all matters which the Commissioner can take note of and all these matters can be W.P.(C) NO. 335 OF 2009 :: 3 :: brought to the notice of the Court. It is agreed by all the counsel that all the parties would be entitled to file work memo before the Commissioner, if found necessary. The challenge against Ext.P5 has no merit. The Writ Petition is accordingly dismissed, however, with the above observations. (K.T.SANKARAN) Judge ahz/