IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 WP(C).No. 5248 of 2010(O) ------------------------------------- [OS.312/2006 OF PRL.MUNSIFF COURT,KOZHIKODE-II] .................... PETITIONER: ------------------- N.JAYANANDAN,S/O.LATE SANKARAN, NADUVICHALIL HOUSE,P.O.KARANTHUR,KUNNAMANGALAM AMSOM,DESOM,KOZHIKODE. BY ADVS. MR.R.SUDHISH, SMT.M.MANJU. RESPONDENTS: ------------------------ 1. MARKAZ SSAQUAFTHI SUNNIYA,KARANTHUR, KUNNAMANGALAM,REP.BY ITS SECRETARY, A.P.ABOOBACKER MUSLIYAR,S/O.AMMED HAJI,KOYILANDY AMSOM, UNNIKULAM DESOM,KOZHIKODE DISTRICT. 2. T.K.KUNHAMMED HAJEE,S/O.KARUTHICHALIL PAREEKUTTI HAJI,TREASURER,MARKAZ SSAQUAFTHI SUNNIYA, KODUVALLY AMSOM DESOM,KOZHIKODE DISTRICT. 3. FASAL POOKOYA THANGAL,PRESIDENT, JIFRI HOUSE,THANGALS ROAD,KARKAZ SSQUAFATHI SUNNIYA, KARANTHUR AMSOM DESOM,KOZHIKODE DISTRICT. BY ADV. MR. M.S. NARAYANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5248/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 312/2006. EXT.P.2: COPY OF THE COMMISSION REPORT DTD. 01/08/2006. EXT.P.3: COPY OF THE WORK MEMO. EXT.P.4: COPY OF THE COMMISSIONER'S REPORT, PLAN AND SURVEY SKETCH. EXT.P.5: COPY OF THE I.A. NO. 696/2010 FILED BY THE PETITIONER. EXT.P.6: COPY OF THE ORDER DTD. 09/02/2010 IN I.A. 696/2010 IN O.S. 312/2006 OF PRL.MUNSIFF COURT II, KOZHIKODE. EXT.P.7: COPY OF THE NOTICE DTD. 09/02/2010 ISSUED BY THE COURT BELOW. EXT.P.8: COPY OF THE JUDGMENT DTD. 24/08/2009IN W.P.(C).NO.2375/2009 OF THIS HONOURABLE COURT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.5248 of 2010-O ------------------------------------- Dated 2nd March 2010 Judgment Aggrieved by the dismissal of the petition to remit the Commissioner's report, the petitioner has come up under Article 227 of the Constitution of India. 2. The petitioner instituted a suit as OS No.312/06 before the Munsiff's Court, Kozhikode, seeking a prohibitory injunction against the defendants. He claimed that the A schedule property shown in the plaint belonged to him and the defendants are trying to trespass into the same. The defendants entered appearance and resisted the suit. It is unnecessary to go into the further details of the case as the issue that arises for consideration falls within a narrow compass. The petitioner sought for issuance of a Commission to identify the property which is in dispute. WPC 5248/10 2 3. It appears that the Commissioner inspected the property and had the property measured, with the assistance of the Taluk Surveyor. But, it so happened that the Taluk Surveyor omitted to show the western boundary of the property which originally belonged to the plaintiff. The Commissioner, in his report, has observed that there is bona fide mistake committed by the Surveyor in omitting to show the western boundary of the property. The Commissioner in his plan has shown the western boundary. 4. It was at this point of time that IA No.696/10, seeking to remit the Commissioner's report and plan to the same Commissioner for filing a fresh report and plan showing the western boundary of the property, was filed. 5. The Court below, on a consideration of the report and plan before it, came to the conclusion that it is a negligible omission on the part of the Taluk Surveyor in not noting the western boundary and it has not affected the actual identification of the plot which is in dispute. It was WPC 5248/10 3 also held that a close reading of the Commissioner's report would clarify the things. It was, therefore, unnecessary to remit the report for that purpose as required by the petitioner. The Court below has also reserved the right of the petitioner to agitate that question at the time of trial if occasion so arises. 6. The learned counsel for the petitioner pointed out that the Court below was not justified in postponing the determination of the issue and it should have remitted the report to the Commissioner. He also pointed out that the sketch now produced is of no help to him and it actually prejudices him and affects his rights. 7. The learned counsel for the respondents, on the other hand, pointed out that the property involved is situated on the eastern side and that has been located by the petitioner as well as the Surveyor. The western boundary was never in dispute. It is also pointed out that even assuming that there is some mistake in the plan, the Court below has taken care to reserve the right of the WPC 5248/10 4 petitioner to agitate that question at the time of trial. 8. The submissions made by the learned counsel for the respondents seem to have considerable force. It is not as if the petitioner is foreclosed from agitating his rights. The Court below has prima facie found that the materials now available, i.e. the Commissioner's report, his plan and the plan prepared with the assistance of the Surveyor, are sufficient. However, the Court below has observed that in case it is found that there is any infirmity in the sketch, the petitioner will be free to urge the same at the time of trial. The order of the Court below cannot be faulted. It is not as if the petitioner is denied of his rights. There is no reason to believe that during trial, if it is found that there is need to get more details in the sketch prepared by the Taluk Surveyor, the petitioner will not be given an opportunity to seek appropriate reliefs. This WPC 5248/10 5 Writ Petition is devoid of any merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE sta WPC 5248/10 6