IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 WP(C).No. 5158 of 2008(L) ------------------------- OS.118/2007 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER: ------------- LUKOSE, S/O.VARGHESE, KUNNAPPILLIL HOUSE, KARIMANNUR KARA, AND VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENTS: ---------------- 1. SABU PAUL, S/O.POULOSE, MADAKKATHANATHU HOUSE, PERUMBILLICHIRA P.O., KUMARAMANGALAM VILLAGE. 2. SAVITHRI ANTHARJANAM, W/O.PARAMESWARAN NAMBUDIRI, INCHAPPILLIL HOUSE, SHAPPUMPADY KARA, THODUPUZHA VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 5158 OF 2008 --------------------- Dated this the 13th day of February, 2008 JUDGMENT This writ petition is filed with a prayer to set aside Ext.P8 order and to allow Ext.P6 application. 2. Ext.P6 is an application filed to review the order in IA 823/07 dated 17.12.07 “Commissioner returned warrant parties not co-operating commission application dismissed”. The court below while considering the review application held that the plaintiff is not co-operating with the Commissioner and that there is no bonafide in the contention that a Commissioner with the help of a Surveyor is necessary and that no steps are taken in time and so rejected the review application. 3. A perusal of the records would reveal that the question to be considered is with respect to the title of the plaintiff with respect to the “B” schedule property, which is situated on the western side of his property. On an earlier occasion, the very same court found the necessity of issuance of a commission for measuring with the assistance of a surveyor and allowed the same. Later on the submission made by the Commissioner that the parties are not co-operating, rejected the same. So the necessity of issuance of a commission with the assistance of a surveyor for properly measuring, identifying and demarcating the property WPC NO 5158/08 2 is a must for a proper disposal of the case. Therefore, the court should have taken the matter in that broad perspective and decided the matter instead of summarily rejecting it. Therefore I set aside the order passed by the court below and restore the review application. I also direct the court below to consider the review application properly with the object in mind that for the disposal of this case there is necessity of a proper survey, plan and report. Needless to say that, till such consideration is over, the court shall not proceed with the trial of the suit. I also make it clear that if the Commissioner, who has visited the property earlier, is willing to go, he may be deputed for the said purpose and in case of his non-availability, the court can appoint another Commissioner, when the court decides to review the order and decide to appoint a Commissioner. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 5158/08 3