IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 640 of 2008(A) ------------------------ OS.156/2002 of MUNSIFF COURT, CHALAKUDY .................... PETITIONER: ------------ VARGHESE, S/O. THEETHAYI KOCHUVAREED, KAITHAPPILLY DESOM, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.RENJITH THAMPAN RESPONDENTS: ------------- 1. POULOSE, S/O. VENNATTUPARAMBIL KUNJUVAREED, KAITHAPPILLY DESOM, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. 2. JOHNY, S/O. THEETHAYI KOCHUVAREED, KAITHAPPILLY DESOM, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.SHEEJO CHACKO FOR R2 SRI.PRASANTH K.DIVAKARAN SRIA.G.UNNIKRISHNAN FOR R2 SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.640 of 2008 EXT.P1 TRUE COPY OF THE WORK MEMO IN O.S.NO.156/02 OF THE MUNSIFF COURT, CHALAKUDY. EXT.P2 TRUE COPY OF THE COMMISSIONER'S REPORT IN O.S.NO.156/2002 DATED 29.11.2006 EXT.P3 TRUE COPY OF THE PETITION I.A.153/07 IN O.S.NO.156/02 OF MUNSIFF COURT, CHALAKUDY. EXT.P4 TRUE COPY OF THE ORDER IN I.A.NO.153/07 IN O.S.NO.156/02 DATED 6.9.2007. //TRUE COPY// P.A. To Judge. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.640 of 2008 ------------------------------- Dated this the 26th June, 2008. J U D G M E N T Petitioner is the first defendant, first respondent the plaintiff, and second respondent the second defendant in O.S.No.156/02, on the file of the Munsiff Court, Chalakudy. The dispute is with respect to the plaint 'B' schedule property. Plaint 'B' schedule property is claimed by first respondent under an Assignment Deed executed by second respondent in his favour. Second respondent is the brother of the petitioner. Petitioner and second respondent obtained the property from their father, which was admittedly divided among the children. According to the petitioner, plaint 'B' schedule property is the common pathway provided under the Partition Deed. According to the respondents, it does not form part of the common pathway, but is the exclusive property allotted to the share of second respondent, who later assigned it in favour of first respondent. A commission was appointed at the instance of first respondent. Petitioner filed a work memo to identify the property including the common pathway as provided under the Partition Deed. W.P.(C) No.640 of 2008 2 Ext.P2 report along with the plan was submitted by the Commissioner. Ext.P3 petition was filed by the petitioner to set aside the report. Under Ext.P4 order, learned Munsiff dismissed the same holding that the report and plan are only piece of evidence, and petitioner is entitled to adduce evidence in support of his plea. This petition is filed under Article 227 of the Constitution of India challenging Ext.P4 order. 2. The learned counsel appearing for petitioner and learned counsel appearing for respondents were heard. 3. The case of petitioner is that Commissioner has not properly identified the property, as provided under the Partition Deed. The argument of the learned counsel for the respondents relying on Ext.P2 report is that Commissioner has properly identified the property. 4. Though there is no reason to set aside the report submitted, in view of the contentions raised by the counsel for the petitioner and for an effective adjudication of the disputes involved in this case, learned Munsiff should have remitted the report to the Commissioner for a further report, in the light of objections in Ext.P3. W.P.(C) No.640 of 2008 3 5. Hence, Ext.P4 order is quashed. Munsiff, Chalakudy,is directed to remit the report back to the Commissioner to file a further report, in the light of the objections raised by the petitioner in Ext.P3 petition. Petitioner shall meet the expense of the commission. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.