IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 23543 of 2008(C) -------------------------- OS.131/2004 of SUB COURT, PALA .................... PETITIONER: ------------ JOSEKUTTY, S/O.THOMAS MUTTATHU HOUSE, CHENAPPADY MURI, ERUMELY SOUTH VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.NARENDRA KUMAR SRI.S.MOHANAN RESPONDENTS: ------------- 1. TOM SOJAN, MUTTATHU, CHENAPPADY KARA, ERUMELY SOUTH VILLAGE, PATHANAMTHITTA DISTRICT. 2. MOLLY, W/O.TOM SOJAN, MUTTATHU HOUSE, CHENAPPADY KARA, ERUMELY SOUTH VILLAGE, PATHANAMTHITTA DISTRICT. 3. RESHMI SOJAN, D/O.TOM SOJAN, MUTTATHU HOUSE, CHENAPPADY KARA, ERUMELY SOUTH VILLAGE, PATHANAMTHITTA DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23543 of 2008 ------------------------------- Dated this the 5th August, 2008. J U D G M E N T Petitioner is the second plaintiff and respondents the defendants in O.S.No.131 of 2004, on the file of Sub Court, Palakkad. The suit is for cancellation of registered documents Nos.2384, 2385 and 2386 of 2004 of SRO, Erumeli, and for permanent prohibitory injunction restraining respondents from creating any document or inducting strangers to the property or from committing waste in the plaint schedule property. Petitioner filed I.A.No.706/2008, an application for appointment of a commission. Under Ext.P5 order, the petition was dismissed. This petition is filed under Article 227 of the Constitution of India to quash Ext.P5 order and to appoint a Commission. 2. The learned counsel appearing for the petitioner was heard. W.P.(C) No.23543 of 2008 2 3. The argument of the learned counsel is that the report of the Commissioner as sought for is relevant and necessary to prove the case of the plaintiffs and therefore learned Sub Judge should have allowed the application. The learned counsel argued that as per document No.2386 of 2004, 10 cents was gifted stating that it was inclusive of the residential house and if a report is submitted identifying the property covered by the document, it can be proved that a portion of the residential house is outside the 10 cents covered by the document, and, therefore, learned Sub Judge should have allowed the application. 4. On hearing the learned counsel and on going through Ext.P5 order, I do not find any illegality or irregularity in the impugned order warranting interference. It is seen from Ext.P3 application filed by the petitioner for appointment of a commission that in paragraph 3 of the affidavit, it was specifically contended that a portion of the residential house stands outside the 10 cents covered by the document. Ext.P4 objection filed by the respondents did not contain a specific denial of that case. Petitioner is entitled to give evidence in support of his claim. If at the time of recording the W.P.(C) No.23543 of 2008 3 evidence, court finds that for deciding the question a Commission is to be appointed, then Ext.P5 order will not stand in the way. Writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.