IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 OP(C).No. 1284 of 2010(O) IA.NO.1148/2010 IN OS.215/2006 OF MUNSIFF'S COURT, PERUMBAVOOR PETITIONERS ------------------------------- 1. PADMINIAMMA, AGED 56 YEARS, W/O.KESAVAN KARTHAVU, KESHAVAMANDIRAM, RESIDING AT AJANTHA NIVAS, KANIRAKKAD KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 2. KESAVAN KARTHAVU, AGED 69 YEARS, S/O.GOPALA PANIKKAR, KESHAVAMANDIRAM, RESIDING AT AJANTHA NIVAS, KANIRAKKAD KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.G.RAJAGOPAL SMT.S.LEELALAKSHMI SMT.N.RENJINEE DEVI RESPONDENT: --------------- INDIRA DEVI, AGED ABOUT 63 YEARS, D/O.RUGMINIAMMA, VICHATHU PUTHEN VEETTIL, ELAMBAKAPILLY KARA, VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-683546. ADV. SRI.VIPIN NARAYAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/01/2011, ALONG WITH OP(C) NO.221 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO.1284 OF 2010 and O.P.(C).NO.221 OF 2011 ------------------------------------------------------ Dated this the 24th day of January, 2011 JUDGMENT The petitioners filed O.S.No.215 of 2006 on the file of the Court of the Munsiff of Perumbavoor against the respondent herein for terminating the licence and for recovery of possession in respect of item No.2 of the plaint A schedule property. There is also a prayer for mandatory injunction directing the defendant to remove the construction made by her in item No.2 of the plaint A schedule. The further prayer in the plaint is for an injunction restraining the defendant from alienating the property or mortgaging the property or from converting the staircase into a room. 2. The defendant filed I.A.No.1562 of 2006 for appointing a Commissioner for measuring the properties in dispute and for submitting a plan and report. The plaintiffs filed objections to that application, in which, they stated that if the application were to be allowed, the property may be measured with reference to Document O.P.(C) NOS.1284/2010 & 221/2011 :: 2 :: No.6078 of 1984 and also in accordance with the survey number. The Commissioner returned the warrant unexecuted. 3. The defendant again filed an application as I.A.No.2131 of 2008 to appoint a Commissioner for conducting an inspection and measurement with the help of the District Survey Superintendent and to produce a plan and report. The Commissioner inspected the property and submitted a report dated 27.1.2009 along with a plan. In the objections filed by the plaintiffs, it was stated that the plaintiffs requested the Commissioner to measure the property with reference to the title deeds. But the Commissioner did not do the work accordingly. The petitioners also filed I.A.No.591 of 2009 to set aside the Commissioner's report and plan. I.A.No.591 of 2009 was dismissed by the trial court by the order dated 21.1.2010. 4. Thereafter, the plaintiffs filed I.A.No.1148 of 2010 to appoint a Commissioner to measure the property with reference to Document Nos.6078/1984, 2426/1960, 3106/1964 and 3771/1969. The court below dismissed I.A.No.1148 of 2010 by the order dated 30.6.2010, which is under challenge in O.P.(C) No.1284 of 2010 at O.P.(C) NOS.1284/2010 & 221/2011 :: 3 :: the instance of the plaintiffs. The order dated 21.1.2010 in I.A.No. 591 of 2009 is challenged by the plaintiffs in O.P.(C) No.221 of 2011. 5. One of the main reasons for dismissal of I.A.No.591 of 2009 is that the plaintiffs did not file any work memo before the Commissioner to measure the properties on the basis of old and resurvey plans. It was also held that the plaintiffs could not point out any genuine reason to show that Exts.C1 and C1(a) Commission report and plan are not proper and correct. It was noticed that the Commissioner had measured the defendant's property and demarcated the disputed staircase room. The court below took the view that in a suit of 2006, the petitioners filed I.A.No.591 of 2009 without any genuine and bona fide reason. 6. In I.A.No.1148 of 2010, the court below held that though the plaintiffs requested the Commissioner to measure the property on the basis of the old survey plan, the plaintiffs did not make available the old survey plan to the Commissioner. It was also held that if they wanted, the plaintiffs could have filed a work memo before the Commissioner. O.P.(C) NOS.1284/2010 & 221/2011 :: 4 :: 7. O.P.(C) No.1284 of 2010 was filed on 22.12.2010 challenging the order dated 30.6.2010 in I.A.No.1148 of 2010. Likewise, the order dated 21.1.2010 is challenged in O.P.(C) No.221 of 2011 filed on 17.1.2011. There was long delay on the part of the petitioners in challenging the orders passed by the court below. Learned counsel for the petitioners submitted that on 1.7.2010, the suit was dismissed for default and it was restored only on 4.11.2010 and that was the reason for the delay. 8. Even if the court below dismissed I.A.No.591 of 2009 on 21.1.2010, the petitioners did not challenge that order. On the other hand, they filed another application (I.A.No.1148 of 2009) for almost the same purpose pointing out different reasons. The court below dismissed that application also by the order dated 30.6.2010. 9. It is true that the plaintiffs pointed out on the first occasion when the defendant filed an application for appointing a Commissioner that it is necessary to measure the properties in accordance with the title deeds. It is also clear from the objection filed by the plaintiffs to the Commissioner's report that they wanted to measure the property with reference to the title deeds and with O.P.(C) NOS.1284/2010 & 221/2011 :: 5 :: reference to the old survey records. The court below did not properly advert to these aspects while dealing with the aforesaid two applications. 10. The suit is of the year 2006. The plaintiffs did not file any application for appointing a Commissioner. On the other hand, the defendant filed the application for appointing a Commissioner. From a perusal of the various applications and the orders passed thereon, it is clear that the plaintiffs were not very vigilant in challenging the orders passed against them. 11. The order for setting aside the Commissioner's report is only temporary in nature. As held in Kanaran Nair v. Madhavan Nair (1996 (1) KLT 162), even after dismissal of an application for setting aside the Commissioner's report, the affected party can examine the Commissioner and establish that further inspection is required. The court would not be precluded from passing appropriate orders after considering the evidence adduced at the time of trial. In this case also, the same principle would apply and the petitioners can establish during trial that inspection of the property with reference to the title deeds and old survey plan is O.P.(C) NOS.1284/2010 & 221/2011 :: 6 :: absolutely necessary for resolving the dispute involved in the case. The trial court will certainly look into the matter at the time of trial and pass appropriate orders, if the court finds that for resolving the disputes involved in the case an inspection by the Commissioner is required. 12. Though the petitioners were successful in pointing out that the court below did not fully comprehend the case put forward by the petitioners that measurement with reference to title deeds is required, I do not think it proper to exercise the jurisdiction under Article 227 of the Constitution of India to upset the orders passed on 21.1.2010 and 30.6.2010, particularly when the Original Petitions were filed by the petitioners in December, 2010 and July 2011. With the above observations, the Original Petitions are dismissed. (K.T.SANKARAN) Judge ahz/