IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No.1019 of 2009 (U) -------------------------------- OS.1142/2007 of PRL. M.C.,ERNAKULAM .................... PETITIONER: --------------- M/S.THOMSUN RELATORS PVT.LTD,HAVING ITS PRESENT REGISTERED OFFICE AT THOSUN ANNEXE, NO.40/9451,ACHUTHA WARRIER LANE,M.G.ROAD, COCHIN-35,REP.BY ITS DIRECTOR K.V.ABRAHAM AGED 51 YEARS,SON OF K.C.VARGHESE. BY ADV. SRI.SREELAL N.WARRIER SRI.THYPARAMBIL THOMAS THOMAS RESPONDENT: --------------- DAMODAR MEONN,KADEKUZHI HOUSE, KUNDANOOR,MARADU, KANAYANNUR TALUK,ERNAKULAM DIST. REP.BY ITS POWER OF ATTORNEY HOLDER VENUGOPALA MENON,SON OF DEVAKI AMMA AGED 60,RESIDING AT KADEKUZHI HOUSE,KUNDANNUR,MARADU,KANAYANNUR TALUK ERNAKULAM DISTRICT. ADV. SRI.A.BALAGOPALAN FOR R1 SRI.A.RAJAGOPALAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.1019 of 2009 (U) APPENDIX PETITIONER'S EXTS:- EXT.P1:- TRUE COPY OF THE RELIEFS CLAIMED IN THE PLAINT IN O.S. NO.1142/07 ON THE FILE OF THE PRL. M.C., ERNAKULAM. EXT.P2:- TRUE COPY OF THE RELEVANT PORTION OF THE REGISTERED PARTITION DEED NO.497/1970 OF SRC, TRIPUNITHURA. EXT.P3:- TRUE COPY OF THE COMMISSIONER REPORT AND SKETCH 18TH DAY OF AUGUST, 2008 OF THE M.C., ERNAKULAM. EXT.P4:- ORDER DT.19/11/08 IN I.A. NO.8472/08. ............ K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.1019 OF 2009 ------------------------------------------------ Dated this the 29th day of January, 2009 JUDGMENT Heard counsel on both sides. The grievance of the petitioner who is the defendant in O.S.1142/07 on the file of the Munsiff's Court, Ernakulam filed by the respondent, is that the Commissioner has filed Ext.P3 report and sketch measuring out the properties, but that the commissioner has not adopted the general rule in the matter of measuring out the property as from out of 20 cents belonging to the respondent he has assigned in favour of the predecessor in interest of the petitioner an extent of 7.750 cents giving also the side measurements thereof and comprised in Sy. No.324/1 of Maradu village and naturally therefore, he could have in his possession only the rest after excluding the 7.750 cents whereas the W. P. C. No.1019 OF 2009 -2- commissioner has measured out 12.250 cents as the plaint schedule leaving out the property sold to his predecessor in interest which now on measurement comes to only six and odd cents and that the plaintiff being the vendor of the predecessor in interest of the petitioner/ defendant any deficit in area in the 20 cents that belonged to him has to be suffered by him and not by his transferee to whom he has assigned 7.750 cents. It is also his case that while demarcating the scheduled property certain extent from the eastern property belonging to the plaintiff's sister which also has been purchased by him has been trespassed upon to show the exact extent of the scheduled property as 12.250 cents and therefore, he filed an application to remit the commission report back to the commissioner for measuring out the 7.750 cents on the southern side of the scheduled property sold by the plaintiff W. P. C. No.1019 OF 2009 -3- to the predecessor in interest of the defendant and also to measure out the property that belonged to the sister of the plaintiff which has been purchased by the defendant but the court below has by Ext.P4 order rejected the request dismissing I.A.8472/08 filed by him. 2. It is true that the petitioner who has filed a work memo before the court below while issuing a commission on the request of the plaintiff has failed to ask for the above details being got ascertained and that there was negligence on his part in not doing the needful at the appropriate time as pointed out by counsel for the respondents. The suit has come up for trial in the list and it is submitted that it now stands posted to some future date having been got adjourned from today. All the same, it cannot be disputed that when a person disposes of a part of his W. P. C. No.1019 OF 2009 -4- property he cannot contend that he has not assigned the entire extent alienated by him and that he is having the entire extent after deducting the alienated portion although there may be deficit in the total extent of land from which he sold a portion. In the circumstances, it is only proper that the commission report is remitted back to the commissioner as prayed for by the petitioner/ defendant vide I.A.8472/08 as that alone would enable resolving the dispute between the parties in a just manner. 3. In the result, allowing this Writ Petition, I set aside Ext.P4 order of the court below and allow I.A.8472/08 filed by the petitioner/defendant so as to enable identi- fication of the properties belonging to both the plaintiff and the defendants and to have a proper boundary being fixed for the plaint schedule property. The court below shall W. P. C. No.1019 OF 2009 -5- remove the suit from the list and enable commission report and plan being obtained remitting the commission report and plan to the commissioner. K.P.BALACHANDRAN, JUDGE kns/-