IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 12473 of 2010(O) -------------------------- AGAINST THE ORDER DATED 13/11/2009 IN IA 866/2009 IN AS.163/2007 of ADDL. DISTRICT COURT, PATHANAMTHITTA .................... PETITIONER: --------------- 1. V.G.SUDHABHAI, W/O.K.SIVASANKARAN NAIR, KARTHIKESH, VEDARAPLAVU MURI, THAMARAKULAM VILLAGE, MAVELIKKARA TALUK. 2. K.SIVASANKARAN NAIR, S/O.KESAVAN NAIR, AGED 59, KARTHIKESH, VEDARAPLAVU MURI, THAMARAKULAM VILLAGE, MAVELIKKARA TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENTS: --------------- 1. JOHN.T.V, S/O.LATE VARGHESE, THANUNGATTIL HOUSE, MANJANIKKARA MURI, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT. 2. MARYKUTTY, W/O.JOHN.T.V, THANUNGATTIL HOUSE, MANJANIKKARA MURI, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT. 3. THE STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. 4. THE TALUK TAHSILDAR, PATHANAMTHITTA TALUK OFFICE, PATHANAMTHITTA DISTRICT. 5. THE VILLAGE OFFICER, OMALLOOR VILLAGE OFFICE, PATHANAMTHITTA DISTRICT. ADV. SRI. K.SHAJ FOR R1&2 SRI.K.N.RADHAKRISHNAN(IDUKKI) FOR R1&2 SRI.SAJJU.S FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12473 of 2010 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.423/2004 DTD. 30.09.2004 ON the FILE OF THE MUNSIFF COURT, PATHANAMTHITTA EXHIBIT P2 : APPLICATION BY THE RESPONDENTS 1 AND 2 HEREIN AS IA.No.843 OF 2009 IN A.S.No.163/2007 DTD. 19.10.2009 ON THE FILE OF THE ADDL. DISTRICT JUDGE, PATHANAMTHITTA EXHIBIT P3 : ORDER PASSED IN IA No.843/2009 IN A.S.No.163/2007 DTD. 13.11.2009 ON THE FILE OF THE ADDL. DISTRICT JUDGE, PATHANAMTHITTA EXHIBIT P4 : APPLICATION IN IA.No.866/2009 IN A.S.No.163/2007 DTD. 09.11.2009 ON THE FILE OF THE ADDL. DISTRICT JUDGE, PATHANAMTHITTA EXHIBIT P5 : ORDER IA No..866/2009 IN A.S.No.163/2007 DTD. 13.11.2009 ON THE FILE OF THE ADDL. DISTRICT JUDGE, PATHANAMTHITTA RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.12473 of 2010 --------------------------------------- Dated this 17th day of August, 2010 JUDGMENT Petitioners filed O.S.No.423 of 2004 in the court of learned Munsiff, Pathanamthitta for a decree for fixation of northern boundary of item No.1, prohibitory and mandatory injunction. Petitioners alleged that respondent Nos.1 and 2 interfered with the existing boundary and hence the prayer for prohibitory injunction. Respondent Nos.1 and 2, in turn filed O.S.No.361 of 2004 seeking a decree for prohibitory injunction against petitioners. The suits were tried jointly. Advocate Commissioner inspected the property with assistance of a Surveyor and submitted report and plan (Ext.C3 is the plan). As per Ext.C3, boundary between item Nos.1 and 2 and plaint schedule in O.S.No.423 of 2004 is 'CD' line. Learned Munsiff accepted the report and plan and granted decree in favour of petitioners in O.S.No.423 of 2004 while O.S.No.361 of 2004 ended in a dismissal. Respondent Nos.1 and 2 filed A.S.No.163 of 2007 in the court of learned District Judge, Pathanamthitta challenging judgment and decree in O.S.No.423 of 2004. While the appeal was pending in the court of learned Additional District Judge, W.P.C.No.12473 of 2010 : 2 : respondent Nos.1 and 2 filed I.A.No.843 of 2009 (Ext.P2) to appoint an Advocate Commissioner to survey item Nos.1 and 2 in order to fix boundary line between the two properties and also to ascertain certain other matters. Respondent Nos.1 and 2 alleged that petitioners interfered with item No.2 using JCB and annexed a portion of that property to item No.1. That application was resisted by petitioners on the ground that so far as Ext.C3, plan remained, there is no question of obtaining a second plan. Alleging that interim order passed by learned Additional District Judge was violated by respondent Nos.1 and 2, petitioners filed an application under Order 39 Rule 2A of the Code of Civil Procedure (for short, “the Code”) and to prove the alleged violation they filed I.A.No.866 of 2009 for the issue of a commission. Learned Additional District Judge allowed Ext.P2, application vide Ext.P3, order. I.A.No.866 of 2009 was allowed vide Ext.P5, order. Learned Additional District Judge has stated that Commissioner appointed as per Ext.P3, order (on I.A.No.843 of 2009) shall note the matter sought for in I.A.No.866 of 2009. Petitioners challenged Ext.P3, order. Learned counsel relying on the decision in Swami Premananda Bharathi Vs. Swami Yogananda Bharathi (1985 KLT 144) contends that in so far W.P.C.No.12473 of 2010 : 3 : as boundary between item Nos.1 and 2 having been fixed by measurement as shown in Ext.C3, plan no question of deputing another Commissioner to ascertain the boundary so far as the report and plan remained in force, arose. Learned counsel for respondent Nos.1 and 2 contend that it is well within the power of court to depute another Commissioner to collect datas for just and fair decision of the appeal. 2. Decision relied by the learned counsel states that without setting aside the existing report, a second commission cannot be appointed to ascertain matters already ascertained through the first commission. Here as per Ext.C3, plan boundary between item Nos.1 and 2 has been fixed as 'CD' line and that has been accepted by the learned Munsiff while granting decree in favour of petitioner in O.S.No.423 of 2004. It is seen from Ext.P2, application that what is asked for is to survey and fix boundary line between item Nos.1 and 2 properties with the aid of surveyor. That, in my view cannot be permitted so far as Ext.C3, plan remained in force. It is a different matter that respondent Nos.1 and 2 are able to convince appellate court that Ext.C3, plan is not reliable and accepting that contention appellate court sets aside Ext.C3, plan, judgment and decree in W.P.C.No.12473 of 2010 : 4 : O.S.No.423 of 2004 and remits the matter to the trial court with direction to take out a fresh commission with the assistance of Surveyor for proper measurement of properties to find correct boundary between the properties. In the circumstances, so far as Ext.C3, plan stands, learned Additional District Judge was not correct in allowing Ext.P2, application to the extent it concerned the request for survey and fixation of boundary between item Nos. 1and 2. 3. No doubt with respect to matters not covered by the earlier report and plan appellate court is competent to call for a fresh report. It is not disputed by learned counsel for petitioners that item Nos. 2 to 4 in Ext.P2, application are not matters covered by the existing report and plan. Hence Ext.P3, order to the extent it concerned direction to ascertain item Nos. 2 to 4 in Ext.P2, application has to stand. So far as item Nos.5 to 7 are concerned, those matters also have been ascertained by the first commission. Hence those items also cannot be allowed to be ascertained again. 4. Learned counsel for petitioners state that challenge to Ext.P5, order is not pressed. Submission is recorded. Resultantly this writ petition is allowed in part in the W.P.C.No.12473 of 2010 : 5 : following lines: (i) Ext.P3, order to the extent it concerned ascertainment of item Nos. 1 and 5 to 7 in Ext.P2, application is set aside. (ii) Ext.P3, order to the extent it concerned ascertainment of item Nos.2 to 4 is confirmed. (THOMAS P JOSEPH, JUDGE) Sbna/-