IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 OP(C).No. 666 of 2010(O) ------------------------------------ OS.240/2008 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER ------------------ RAVEENDRAN.T.N., S/O.GOVINDAN, THURUTHIPPALLIL HOUSE, AMARA.P.O., THRICKODITHANAM VILLAGE, CHANGANACHERRY TALUK. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): ------------------------- 1. INDIRA, W/O.SOMAN, KUMPUKKAL HOUSE, VAZHOOR EAST, CHANGANACHERRY-686 101. 2. SREEDHARAN, S/O.GOVINDAN, THURUTHIPPALLIL HOUSE, AMARA.P.O., THRICKODITHANAM VILLAGE, CHANGANACHERRY TALUK- 686 101 3. KRISHNANKUTTY, S/O.GOVINDAN, THURUTHIPPALLIL HOUSE, AMARA.P.O., THRICKODITHANAM VILLAGE, CHANGANACHERRY TALUK- 686 101. 4. MURALEEDHARAN, S/O.GOVINDAN, THURUTHIPPALLIL HOUSE, AMARA.P.O., THRICKODITHANAM VILLAGE, CHANGANACHERRY TALUK- 681 101. 5. PRASANTH, S/O.MURALEEDHARAN, THURUTHIPPALLIL HOUSE, AMARA.P.O., THRICKODITHANAM VILLAGE, CHANGANACHERRY TALUK. 686 101. R1 BY SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE R1 BY ADV. SMT.DEEPTHI S.MENON THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.666/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN PLAINT IN OS. 240/08 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY. P2:- COPY OF THE WRITTEN STATEMENT IN OS. 240/08 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY. P2(a):- COPY OF THE ADDITIONAL WRITTEN STATEMENT IN OS. 240/2008 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY. P3:- COPY OF THE COMMISSION REPROT AND PLAN. P4:- COPY OF THE COMMISSION APPLICATION P5:_ COPY OF THE REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER. P6:- COPY OF THE PETITION TO SET ASIDE EXT.P5 REPORT AND PLAN. P7:- COPY OF THE OBJECITON TO EXT.P6 APPLICATION. P8:- COPY OF THE COMMISSION APPLICATION. P9:- COPY OF THE OBJECTION FILED BY THE IST RESPONDENT. P10:- COPY OF THE ORDER IN IA. 622/2010 IN OS. 240/2008 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY. P11:- COPY OF THE ORDER IN IA. 1397/2010 IN OS. 240/2008 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY. P12:-COP WORK MEMO FILED BY THE PETITIONER. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.666 of 2010 -------------------------------------- Dated this the 27th day of July, 2011. JUDGMENT First defendant in O.S.No.240 of 2008 of the court of learned Munsiff, Changanacherry is the petitioner before me challenging Exts.P10 and P11, orders refusing to set aside Ext.P5, report and plan and appoint a new commissioner to identify the disputed pathway. First respondent filed the suit for fixation of boundary of the suit properties and for a decree for prohibitory injunction claiming that item I, 15 cents belongs to and is in her possession as per settlement deed No.2726 of 2003 and that item II is a pathway having five feet width originating from the public road on the east and going along the suit property and other items. Petitioner and other contesting defendants denied existence of any such way. Advocate Commissioner submitted a report immediately after filing of the suit. Thereafter the same Commissioner measured the properties with the assistance of a Surveyor and submitted Ext.P5, report and plan showing, what according to him, is the position and lie of the properties including the disputed way. Petitioner filed Ext.P6, application to set aside Ext.P5, report and plan stating, mainly, that the measurement has been taken based on the plaint averments and not based on documents of title relied on by the parties and hence identification of the disputed pathway is not correct and cannot be accepted. That application was dismissed as per Ext.P10, order dated October 14, 2010. Later petitioner and others filed I.A.No.1397 of 2010 to OP(C) No.666/2010 2 appoint an Advocate Commissioner to measure the properties in the way they requested for. That application was dismissed by Ext.P11, order. The said orders are under challenge. 2. Learned counsel for petitioner contended that going by the averments in the plaint it is not as if the disputed way is situated on the north of plaint schedule item No.1. But the Advocate Commissioner in Ext.P5, report and plan has not shown the lie and position of disputed pathway in that manner. The identification was not done based on documents of title of parties but with reference to the averments in plaint. Learned Senior Advocate appearing for first respondent/plaintiff has contended that there is no legal infirmity in Ext.P5, report and plan where item I and other properties as well as the disputed way (item II) are clearly identified and shown. It is pointed out that there is no reason to set aside that report and plan and that too, without recording evidence on I.A.No.622 of 2010. Learned Senior Advocate contended that for the mere asking of petitioner and others Ext.P5, report and plan cannot be set aside. My attention is drawn to the observation learned Munsiff has made in Ext.P10 that the admissibility of Ext.P5, report and plan can be decided during trial. 3. It is not disputed before me that on any of the applications petitioner and others preferred which culminated in Exts.P10 and P11, orders neither the Advocate Commissioner nor the Surveyor was examined. It is not as OP(C) No.666/2010 3 if merely for the reason that there is a request to set aside the report or remit it, or some inadequacy is pointed, the court should accede to the request and either set aside or remit it. It requires evidence with respect to the disputed questions. 4. Learned Munsiff has observed in paragraph 5 of Ext.P10, order that from the available evidence on record it is not possible to set aside the report and plan submitted by the Advocate Commissioner at this stage and that evidenciary value and admissibility of the Commissioner’s report and plan can be decided during trial. Hence the prayer for setting aside Commissioner's report and plan was not allowed. Consequent to that I.A.No.1397 of 2010 to appoint an Advocate Commissioner afresh was also disallowed. 5. I must bear in mind that the report of the Advocate Commissioner is only a piece of evidence and that it is not conclusive either way. I must also bear in mind that it is the first respondent who wants a decree from the court based on the averments in the plaint. If the report and plan are not acceptable it goes to the disadvantage of the first respondent. The question whether Ext.P5, report and plan could be accepted having regard to the contentions that petitioner and other defendants have raised is a matter which the trial court can consider in the course of trial. At that stage, if the court thinks that Ext.P5, report and plan are not helpful to decide the controversy or, either of the parties requires any further information to be obtained through the Advocate Commissioner it is open to them also request, and the learned Munsiff can OP(C) No.666/2010 4 pass appropriate orders in that regard. In view of that I do not find reason to interfere with Exts.P10 and P11, orders. But, the right of the parties as above referred is reserved. Resultantly reserving the right of parties as above stated, this Original Petition is disposed of. THOMAS P.JOSEPH, Judge. cks