IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 WP(C).No. 37345 of 2009(O) -------------------------- PETITIONER: --------------- K.S.JAMES, AGED 44 YEARS, S/O.SCARIAH, KARICKAL HOUSE, KARINILAM KARA, ERUMELY NORTH VILLAGE, KANJIRAPPALLY TALUK. BY ADV. MR.V.R.KESAVA KAIMAL RESPONDENTS: --------------- 1. C.KUNJU, S/O.KUTTY, CHEENIVELIKKAKATHU HOUSE, 504 COLONY, PUNCHAVAYAL P.O., ERUMELY NORTH VILLAGE-686 513. 2. KUNJUMON, S/O.COLONY, CHEENIVELIKKAKATHU HOUSE, 504 COLONY, PUNCHAVAYAL P.O., ERUMELY NORTH VILLAGE-686 513. 3. PENNAMMA, W/O.MATHAI, KUNAMPUZHA HOUSE, MUTTAM KARA, THODUPUZHA TALUK, IDUKKI DISTRICT, THODUPUZHA P.O. 4. LEELAMMA W/O.RIJO, CHEENIVELIL, 504 COLONY, PUNCHAVAYAL P.O., ERUMELY NORTH VILLAGE-686513. 5. SANTHAMMA, W/O.RAJU, THAKADIYEL HOUSE, NEDUNGAKARAYIL, ERUMELY NORTH VILLAGE, PUNCHAVAYAL P.O.-686513. 6. RIJO, CHEENIVELIL, 504 COLONY, PUNCHAVAYAL P.O. ERUMELY NORTH VILLAGE-686513. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.37345 of 2009 - O --------------------------------- Dated this the 23rd day of December, 2009 J U D G M E N T Petitioner is the plaintiff in O.S.No.220 of 2002 on the file of the Munsiff Court, Kanjirappally. Suit is one for declaration of title, recovery of possession and injunction. Respondents are the defendants. Suit after trial had been previously decreed in favour of the plaintiff. Defendants preferred an appeal challenging the decree and judgment passed by the trial court. Appeal was allowed remitting the case granting opportunity to the petitioner/plaintiff to identify the properties involved with reference to title deeds and survey records. Pursuant thereto a commission application was moved by the plaintiff for identification of the suit properties as directed in the remand order and the learned Munsiff allowed that application. The commissioner after conducting local inspection measured out the property with the assistance of a surveyor and filed a report and plan. Petitioner/plaintiff raised objection to the report and sought for remitting the report contending that the report suffered from serious infirmity and require further clarification. Learned Munsiff W.P.(C).No.37345 of 2009 - O 2 after hearing both sides dismissed that application of the petitioner/plaintiff vide Ext.P8 order. Propriety and correctness of Ext.P8 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel for the petitioner. Having regard tot he submissions made and taking note of the facts and circumstances presented with reference to Ext.P8 order impugned in the writ petition and also other exhibits produced, I find no notice to the respondents is necessary, and it is dispensed with. 3. It is seen that Ext.P8 order was passed by the court solely based on the arguments canvassed by the counsel on both sides with reference to the objections raised by the petitioner/plaintiff to the report and plan. It appears that the plaintiff has not sought for nor an opportunity extended by the court to examine the commissioner and the surveyor to consider the objections raised to the report. Since suit had been remanded with specific directions with respect to the identification of the property, I find the petitioner/plaintiff has to be given an opportunity to substantiate his objections to the W.P.(C).No.37345 of 2009 - O 3 report and plan, for which the examination of the commissioner and surveyor may be essential. So much so, in the trial of the suit, I direct the learned Munsiff to provide an opportunity to the plaintiff to examine the commissioner and also the surveyor, if steps are, taken to substantiate his objections to the report and plan. In case commissioner and surveyor are examined, then, the learned Munsiff shall consider the merit of the report afresh untrammelled by any of the observations made in Ext.P8 order and pass appropriate orders on the basis of the evidence let in the case. I make it clear that the direction given as above should not be construed as enabling the plaintiff to have a preliminary enquiry on the merit of the report before trial of the suit. However, if the court finds in trial of the suit that the report and plan suffer from infirmity warranting remission, appropriate orders as contemplated by law has to be passed. Subject to the above observations, writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-