W.P.C.No.17572 OF 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 17572 of 2010(O) -------------------------- OS.286/2005 of MUNSIFF COURT, CHITTUR .................... PETITIONER: --------------- MADHAVAN, S/O. PONNAN, RESIDING AT PAPPANCHALLA, MUTHALAMADA AMSOM DESOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN SMT. NITA N S RESPONDENTS: --------------- 1. CHITHAMBARAN, S/O. PONNAN, RESIDING AT PAPPANCHIRA, MUTHALAMADA AMSOM DESOM, CHITTUR TALUK P O, PALAKKAD DISTRICT. 2. BALAN, S/O. PONNAN, RESIDING AT PAPPANCHIRA, MUTHALAMADA AMSOM DESOM, CHITTUR TALUK P O, PALAKKAD DISTRICT. ADV. SRI.P.VIJAYA BHANU FOR R-2 SRI. RAJESH SIVARAMANKUTTY SMT.M.M.DEEPA FOR R-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.17572 OF 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.NO.286 OF 2005 ON THE FILE OF THE MUNSIFF'S COURT, CHITTUR FILED BY THE PETITIONER. EXHIBIT P2 : REPORT and PLAN FILED BY THE ADVOCATE COMMISSIONER IN O.S.NO.286 OF 2005 ON THE FILE OF THE MUNSIFF'S COURT, CHITTUR EXHIBIT P3 : OBJECTIONS FILED BY THE PETITIONER DATED 27-01-2010 TO THE COMMISSION REPORT EXHIBIT P4 : APPLICATION FOR REMITTANCE OF the COMMISSION REPORT FILED BY THE PETITIONER AS I.A.No.313 OF 2010 BEFORE the MUNSIFF'S COURT, CHITTUR EXHIBIT P5 : ORDER PASSED BY THE MUNSIFF'S COURT, CHITTUR DTD.03- 03-2010 IN I.A.No.313 OF 2010 IN O.S.NO.286 OF 2005 RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.17572 of 2010 --------------------------------------- Dated this 14th day of June, 2010 JUDGMENT Dismissal of Ext.P4, I.A.No.313 of 2010 to remit report of the Advocate Commissioner is under challenge in this petition. Petitioner sued respondents for a mandatory injunction for removal of fence and pillars allegedly put up by them and allegedly encroached into the plaint A schedule property over which petitioner claimed title and possession. Respondents denied the allegations and contended that there was no trespass at their instance. Petitioner filed I.A.No.1600 of 2005 to appoint an Advocate Commissioner with a Surveyor to measure the property and prepare the plan. That application was allowed and the Advocate Commissioner has filed Ext.P2, report on 04-01-2010. Petitioner preferred Ext.P3, objection stating that identification of property made by the Commissioner is not correct and filed Ext.P4, application for remission of the report which has been dismissed by the learned Munsiff. According to the petitioner, property has not been identified with reference to old survey records and partition deed on which he is placing reliance and without doing that, it is not possible to identify the property. Learned counsel for respondents contend that there was no request for measurement of the property with reference to the old survey records or title deed W.P.C.No.17572 of 2010 : 2 : and that when request was made for measurement of the properties in accordance with the resurvey records that has been done by the Advocate Commissioner. Petitioner is now trying to fish out evidence. 2. Going by Ext.P2, report, learned counsel for petitioner points out that identification of plaint A schedule was based on resurvey records (alone) and there is no reference to measurement with reference to the document of title. 3. Having regard to the nature of request made in I.A.No.1600 of 2005 I do not find reason to remit Ext.P2, report and plan appended thereto. But petitioner can be given opportunity to take out a Commission with the assistance of a Surveyor to measure the property with reference to the old survey records and the title deed which he is relying but, keeping Ext.P2, report in tact. The question as to which of the report and plan is to be accepted shall be decided by the trial court after trial. Respondents/defendants will also get opportunity to file work memo in the court below before the Advocate Commissioner is appointed for measurement as above stated. Resultantly the writ petition is allowed. Dismissal of Ext.P4 (I.A.No.313 of 2010) is set aside and that application is allowed in the following lines: W.P.C.No.17572 of 2010 : 3 : (a) Keeping Ext.P2, report and plan in tact petitioner can take out the same Advocate Commissioner, if available, to inspect the property and to get it measured with reference to the old survey records and title deed relied on by him. Assistance of a Surveyor (if possible the same Surveyor) can also be made available for the purpose. (b) It is open to the respondents to file work memo in the court below before the Advocate Commissioner is deputed for measurement of the property. (c) Batta payable to the Commissioner and Surveyor by petitioner shall be fixed by the court below. (THOMAS P JOSEPH, JUDGE) Sbna/-