IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(C).No. 15263 of 2008(P) -------------------------- AGAINST THE ORDER IN IA.3078/2007 IN OS.75/2004 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONERS: ------------------- 1. MARY VARGHESE, AGED 55 YEARS, W/O.LATE VARGHESE, PUTHUVA HOUSE, PAZHANGANADU KARA, KIZHAKKAMBALAM VILLAGE. 2. SIJO VARGHESE, AGED 34 YEARS, S/O.LATE VARGHESE, PUTHUVA HOUSE, PAZHANGANADU KARA, KIZHAKKAMBALAM VILLAGE. 3. JIJO.P.V., AGED 33 YEARS, S/O.LATE VARGHESE, PUTHUVA HOUSE, PAZHANGANADU KARA, KIZHAKKAMBALAM VILLAGE. 4. VIJO VARGHESE, AGED 31 YEARS, S/O.LATE VARGHESE, PUTHUVA HOUSE, PAZHANGANADU KARA, KIZHAKKAMBALAM VILLAGE. BY ADV. SRI.G.RAJAGOPAL SRI.THOMAS M.JACOB SMT.N.RENJINEE DEVI RESPONDENTS: -------------------- RAPHEL, AGED 43 YEARS, S/O.CHACKO, PUTHUVA HOUSE, PAZHANGANADU KARA, KIZHAKKAMBALAM VILLAGE. BY ADV. SRI.JOBY JACOB PULICKEKUDY FOR R1 SRI.ANIL GEORGE FOR R1 SMT.V.A.SARITHA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioner’s Exhibits:- Exhibit-P1:- True photocopy of the plaint in O.S.No.75/04 on the files of the Munsiff’s Court, Perumbavoor. Exhibit-P2:- True photocopy of the Commission Report and sketch filed by the Advocate Commissioner pursuant to the order in IA 2569 of 2005 in OS 75/2004 on the files of the Munsiff’s Court, Perumbavoor. Exhibit-P3:- True photocopy of the objections filed by the petitioners to Exhibit-P2. Exhibit-P4:- True photocopy of IA 3078 of 2007 in OS 75 of 2004 on the files of the Munsiff’s Court, Perumbavoor. Exhibit-P5:- True photocopy of the order dated 7.12.07 in IA 3078 of 2007 in OS 75 of 2004 on the files of the Munsiff’s Court, Perumbavoor. //True Copy// P.A. To Judge M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C).NO. 15263 OF 2008 ------------------------------------------ DATED THIS THE 6TH DAY OF JUNE, 2008 JUDGMENT Petitioners are the plaintiffs and respondent the defendant in the suit. The suit is for fixation of the boundary as well as for declaration of title and recovery of possession. A commission was appointed. Commissioner submitted Ext.P2 report and Ext.P2(a) plan. Petitioner filed Ext.P3 objection and Ext.P4 petition to remit the report back to the commissioner. The application was opposed by the respondent. Under Ext.P4 order, petition was dismissed. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioners and respondent were heard. 3. Petitioners and respondent are claiming title under registered partition deed No.1094 of 1972. Under the document as A schedule, southern 42.750 Cents was allotted to the share of father of deceased plaintiff Similarly as B schedule, northern 42.750 Cents was allotted WPC15263/08 2 to the father of the respondent. Subsequently, as per partition deed 818 of 1973 the southern 42.750 Cents was divided. Deceased plaintiff was allotted 21 cents. It is the plaint A schedule property claimed under the said partition deed. The suit is for fixation of the boundary of the said 21 Cents. Though commissioner prepared Ext.P2(a) plan and submitted Ext.P2 report, case of the petitioners is that the commissioner did not properly identify the properties with reference to the registered partition deed No.1094 of 1972 as well as partition deed No.818 of 1973 by which they are claiming title to the plaint schedule property. 4. The learned Munsiff held that under Ext.P5 properties are properly identified and dismissed the application. Being a suit for fixation of boundary, property is to be properly identified before fixing the boundary. Plaint A schedule property could be identified only after properly identifying the southern 42.750 Cents, which is the A schedule of registered partition deed No.1094 of 1972. So also, property claimed by the respondent is the B schedule property of 1972 partition deed. In such circumstances, learned Munsiff should have remitted the WPC15263/08 3 report back to commissioner as sought. 5. Ext.P4 order is, therefore, quashed. Learned Munsiff is directed to remit the report and plan back to commissioner to submit a further report. The commissioner must identify A and B schedule properties in accordance with partition deed of 1094 of 1972 and thereafter to identify and demarcate the 21 Cents out of the said A schedule property claimed by the plaintiffs under 1973 partition deed. Commissioner shall correctly demarcate the A and B schedule properties as provided under partition deed 1094 of 1972 and then demarcate the 21 cents claimed under partition deed as 818 of 1973 plaint A schedule property in the southern A schedule property of partition deed 1094 of 1972. Writ petition is dismissed as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-