IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 WP(C).No. 15820 of 2008(G) -------------------------- OS.30/2004 of MUNSIFF COURT, PUNALUR .................... PETITIONER: ------------ SAVITHRI AMMA, D/O.KAMALAKSHMI AMMA, AGED 67, JAYALAKSHMI BUNGLOW, THAZHAMEL MURI, ANCHAL VILLAGE. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENTS: -------------- 1. K.S.SAROJAM, W/O.VIKRAMAN PILLAI, SAROJA BHAVAN, THAZHAMEL MURI, ANCHAL VILLAGE. 2. VIKRAMAN PILLAI, S/O.VELAYUDHAN PILLAI, DO.DO. BY ADV. SRI.B.MOHANLAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.15820/2008 EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.30/2004 OF MUNSIFF'S COURT, PUNALUR. EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY FIRST DEFENDANT BEFORE THE MUNSIFF COURT, PUNALUR. EXT.P3 TRUE COPY OF I.A.NO.2747/05 IN O.S.NO.30/04 OF MUNSIFF'S COURT, PUNALUR. EXT.P4 TRUE COPY OF I.A.NO.1152 OF 2006 IN O.S.NO.30 OF 2004 OF MUNSIFF'S COURT, PUNALUR. EXT.P5 TRUE COPY OF I.A.NO.1153 OF 2006 IN O.S.NO.30 OF 2004 OF MUNSIFF'S COURT, PUNALUR. EXT.P6 TRUE COPY OF ORDER IN I.A.NO.1152 OF 2006 DATED 21.1.2008 OF MUNSIFF'S COURT, PUNALUR. EXT.P7 TRUE COPY OF ORDER IN I.A.NO.1153 OF 2006 DATED 21.1.2008 OF MUNSIFF'S COURT, PUNALUR. RESPONDENT'S EXHIBITS: EXT.R1(A) TRUE COPY OF THE DOCUMENT NO.1350/2997 DATED 22.4.1997 OF ANCHAL SUB REGISTRY. EXT.R1(B) TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 18.3.2006 ISSUED BY THE VILLAGE OFFICER, ANCHAL. EXT.R1(C) TRUE COPY OF THE POSSESSION CERTIFICATE NO.1941/2006 DATED 20.5.2006 ISSUED BY THE VILLAGE OFFICER, ANCHAL. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.15820 of 2008 ------------------------------- Dated this the 1st July, 2008. J U D G M E N T Petitioner is the first plaintiff in O.S.No.30 of 2004, on the file of the Munsiff Court, Punalur. The suit was for fixation of boundary and for permanent prohibitory injunction. Second respondent is the first defendant in the suit. First respondent was not originally a defendant in the suit. She is the wife of the second respondent. She got herself impleaded in the suit by filing I.A.No.1152 of 2006 under Rule 10(2) of Order I of Code of Civil Procedure. Along with that application, she filed I.A.No.1153 of 2006, an application to review the order passed by the court, appointing a commission, in I.A.No.2747 of 2005. After allowing the petition for impleading, under Ext.P7 order, learned Munsiff reviewed the order appointing the commission also. This petition is filed under Article 227 of the Constitution of India challenging Ext.P7 order. 2. The learned counsel appearing for the petitioner and learned counsel appearing for the first respondent were heard. W.P.(C) No.15820/2008 2 3. Though a commission was appointed originally in I.A.No.2747/2005, under Ext.P7 order, it was reviewed. But Ext.P7 order does not show the fate of I.A.No.2747/2005, after review, and whether the petition for appointment of a commission was rejected or posted for further enquiry. Being a suit for fixation of boundary, appointment of a commission to prepare a plan demarcating the plaint schedule property is absolutely necessary. Petitioner is claiming title to the plaint schedule property based on the partition deed entered into by their predecessor and the second respondent. First respondent is claiming title to a portion of the property, as per a Gift deed executed by the second respondent, allotted to second respondent under the same partition deed. Therefore, for proper resolution of the dispute, it is necessary to identify the property with reference to the title deeds, whereunder predecessor-in-interest of plaintiff and also second respondent obtained separate rights and the property covered by the Gift deed, executed by the second respondent in favour of the first respondent. Writ petition is allowed. Learned Munsiff is directed to appoint the same Commissioner to identify the plaint schedule property, the property belonging to first respondent under the Gift W.P.(C) No.15820/2008 3 deed executed by second respondent, as well as the property allotted to second respondent under the partition deed. As it is submitted that petitioner has already deposited the commission bata, at present, there is no necessity to deposit bata again. If necessary, court can pass appropriate orders later, on the commission bata to be paid by the petitioner. M.SASIDHARAN NAMBIAR, JUDGE nj.