IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 36563 of 2009(O) -------------------------- OS.250/2004 of MUNSIFF COURT.,PARAPPANANGADI .................... PETITIONER: --------------- 1. PAIKKATTU KARAPPAN, AGED 61 YEARS, S/O.ARUMUGHAN, PAIKKAT HOUSE, VELIMUKKU, TIRURANGADI TALUK. 2. MULLACHEERI CHEERU, AGED 53 YEARS, W/O.P.KARAPPAN, PAIKKAT HOUSE, VELIMUKKU, TIRURANGADI TALUK. BY ADV. SRI.B.G.BHASKAR SRI.BIJU ABRAHAM RESPONDENT: --------------- PALLIYALI ABDURAHIMAN, S/O.MOHAMMED, AGED 55 YEARS, PALLIYAIL HOUSE, VELIMUKKU, PARAPPANANGADI. ADV. SRI.JAMSHEED HAFIZ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36563 of 2009(O) APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : AFFIDAVIT IN SUPPORT OF THE APPLICATION DTD.23.07.2007 AS I.A.NO.1162 OF 2007 IN O.S.250 OF 2004 ON THE FILES OF MUNSIFF COURT, PARAPPANANGADI EXHIBIT P2 : PLAN AND REPORT IN I.A.NO.1162 OF 2007 IN O.S.250 OF 2004 ON THE FILES OF MUNSIFF COURT, PARAPPANANGADI DTD. 15-07-2008 EXHIBIT P3 : PLAN AND REPORT IN I.A.NO.2027 OF 2008 IN O.S.250 OF 2004 ON THE FILES OF MUNSIFF COURT, PARAPPANANGADI DTD. 30.07.2009 EXHIBIT P4 : APPLICATION OF THE RESPONDENT DTD. 13.10.2009 IN O.S.250 OF 2004 ON THE FILES OF MUNSIFF COURT, PARAPPANANGADI EXHIBIT P5 : SAID ORDER DATED 16-11-2009 RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.36563 of 2009 --------------------------------------- Dated this 05th day of July, 2010 JUDGMENT Ext.P5, order dated 16-11-2009 passed by the learned Munsiff, Parappanangady suo moto in O.S.No.250 of 2004 is under challenge at the instance of petitioners/defendants. That is a suit for fixation of boundary filed by respondent/plaintiff. Petitioners resisted the suit contending that property of respondent/plaintiff is comprised in RS No. 400/3 while, that of the petitioners is comprised in RS No.399/7. They also prayed that properties may be located with reference to the survey boundary lines. Advocate Commissioner inspected the properties with assistance of a Surveyor and submitted Exts.C6 and C7, report and sketch. Measurement was made with reference to the survey records. Parties went into evidence and the Advocate Commissioner was examined as PW1. After evidence was closed and the matter was taken up for judgment, learned Munsiff reopened the case suo moto and directed the Advocate Commissioner to identify properties with reference to the documents of title. That order is under challenge. Learned counsel for petitioners contend that respondent had never objected to Exts.C6 and C7 where measurement was made only in accordance with survey records even when Commissioner was examined as PW2, there was no W.P.C.No.36563 of 2009 : 2 : complaint that properties were not measured with reference to the documents of title relied on by the parties. In such a situation it was not required from the learned Munsiff to reopen the case suo moto and direct identification of properties with reference to the documents of title. According to the learned counsel, exercise ordered will only be futile and it would only prolong disposal of the suit. Learned counsel has also taken me through Ext.P3 (copy of Ext.C6) the report submitted by the Advocate Commissioner. Learned counsel for respondent argued that respondent had requested for identification of the properties with reference to document of title also but that was not done by PW2, the Commissioner. It is also contended that a request was made to the Commissioner to measure the properties with reference to the documents of title that was not done due to resistance by petitioner. Learned counsel contends that in view of Order 26 Rule 10(3) of the Code of Civil Procedure (for short, “the Code”) it is well within the power of court to direct Advocate Commissioner to conduct further enquiry if the court is not satisfied with the enquiry already conducted. Reliance is also placed on the decision of this court in 1987(1) KLT 714 (State of Kerala Vs. Kodakat Pokker and Ors.). 2. In the decision relied on by learned counsel it is held W.P.C.No.36563 of 2009 : 3 : that court has the power to set aside and call for fresh report and that failure of parties to object to the report does not curtail that power. Order 26 Rule 10(3) of the Code also provides so. It is within the power of court to call for further details through the Commission without setting aside the earlier report. Hence notwithstanding that either of the parties preferred no objection to the report and plan, it was within the power of the court to either set aside the report, remit it, or call for further details if such a course is found necessary to decide the controversy involved once and for all. The court, I must bear in mind is not a silent umpire. It has an active role in the trial of the case though it cannot relegate itself to the position of a party to the litigation. Question is whether learned Munsiff on the facts and circumstances of the case was justified in exercising that power notwithstanding that respondent had not preferred any objection to Exts.C6 and C7 (Ext.P3 herein). 3. I have gone through Ext.P1, application for appointment of Commission filed by the respondent. There, it is stated that it is highly essential that the properties are identified with reference to the survey and as per the documents of title of the parties. I have also gone through Ext.P3 (copy of Ext.C6, report) where, in paragraph 3 PW2, Commissioner has stated that W.P.C.No.36563 of 2009 : 4 : property of respondent (suit property) is comprised in survey No.400/3. It was given in writing by petitioner to the Advocate Commissioner that it is not necessary to identify property of petitioners and hence that was not done. Nor was property of petitioners measured. According to the petitioners it was sufficient that properties are identified with reference to the survey records. It is also stated in Ext.P3 that request for measurement of property (of petitioner) which was not stated in the counter of respondent was made at the spot (obviously by the respondent) but since “respondent” (reference to “respondent” is obviously a mistake since it is not likely that respondent who made the request for measurement of property with reference to the document of title would himself oppose it) was not in favour of that, property was not measured (with reference to the documents of title). Thus as per Ext.P3 respondent, in tune with his request in the application made a request at the spot to identify the properties with reference to the documents of title, Advocate Commissioner did not, or could not, do that. 4. I must also bear in mind that the suit is for fixation of boundary. Obviously the claim is to fix boundary of suit property with reference to the document of title relied on by the respondent. What is requested by the respondent in the suit is not W.P.C.No.36563 of 2009 : 5 : merely identification of the survey boundary line but, fixation of boundary of the property belonging to him which obviously is with reference to the document of title also. Fixation of boundary should be after settling all disputes regarding title, possession etc. It is necessary that the properties are measured with reference to the documents of title also to decide the dispute regarding boundary. In such a situation the court having gone through the entire records felt that identification of the properties with reference to the documents of title relied on by the parties is also necessary to decide the controversy. The mere fact that respondent had not objected to the report and plan prepared by the Advocate Commissioner in the facts and circumstances stated above, is not by itself sufficient to deter the court from taking appropriate steps to settle the dispute between parties. In such a situation it was well within the power of the court to have even suo moto directed Advocate Commissioner to identify properties with reference to documents of title and submit report. The court has not rejected or remitted the report already submitted by the Commissioner. What learned Munsiff has done is only to call for a further report and plan based on identification with reference to the document of title also. There is nothing illegal in the order passed by the learned Munsiff. Certainly petitioner will get an W.P.C.No.36563 of 2009 : 6 : opportunity to raise his objection if any to the report and plan the Advocate Commissioner submits. He will also get opportunity to adduce further evidence if any. In the circumstances, no interference is required with the order under challenge. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-