IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 WP(C).No. 28065 of 2007(N) ------------------------------------- PETITIONER: ------------------- INDIRA, D/O. GOWRI, GOWRI MANDIRATHIL, KOTTE MURI, THRIKKUNNAPUZHA VILLAGE. BY ADV. SRI.S.MOHANAN RESPONDENT: ------------------------ RAJENDRAN, S/O. PALANI, THAYYIL VEETTIL, PALLIPPATTU MURI, THRIKKUNNAPUZHA VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA. BY ADV. SRI.G.ANANTHANARAYANAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28065/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PLAINT IN 24/2000. EXT.P2:- COPY OF THE WRITTEN STATEMENT 20.10.2000. EXT.P3:- COPY OF THE COMMISSION APPLICATION IN IA. NO.20/2001. EXT.P4:- COPY OF THE COMMISSIONER'S REPORT AND MAHAZAR DT. 30.10.2004. EXT.P5:- COPY OF THE PLAN. EXT.P6:- COPY OF THE RESURVEY PLAN. EXT.P7:- COPY OF THE ASSIGNMENT PLAN OF THE DEFENDANT DT. 3.2.1972. EXT.P8:- COPY OF THE STATEMENT DT. 7.3.2000. EXT.P9:- COPY OF THE APPLICATION DT. 22.10.2005. EXT.P10:- COPY OF THE ORDER OF THE COURT BELOW DT. 31.5.2007. /TRUE COPY/ P.S. TO JUDGE tss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 28065 OF 2007 =========================== Dated this the 5th day of June 2008 JUDGMENT Petitioner is the plaintiff in O.S.24/2000 on the file of Munsiff Court, Haripad. Petitioner filed I.A.1613/2005 an application under Rule 10 of Order XXVI of Code of Civil Procedure to set aside the report and plan. Under Ext.P10 order the petition was dismissed. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel appearing for petitioner is that Ext.P8 communication of the Tahsildar shows that the there is no sub division of survey number 534/2-3, 534/2-2 and Ext.P6 survey plan shows that the disputed portion of the plaint schedule property which is the northern portion marked therein is in W.P.(C)28065/2007 2 survey No.534/1 and Ext.P7 sketch prepared in LA 889/71 based on which respondents are claiming right shows that the said property is in survey No.516 and therefore Ext.P4 report and Ext.P5 plan submitted by the Commissioner is not correct. Learned counsel argued either in such circumstance I.A.1613/2005 should have been allowed by the learned Munsiff. 3. On hearing the learned counsel, I do not find any illegality or irregularity in Ext.P10 order warranting interference in exercise of the extra ordinary jurisdiction of this court under Article 227 of the Constitution of India. The fact that report was not set aside as sought for in I.A.1613/2005 does not mean that suit is to be decided or a decree is to be granted in accordance with the said report and plan. Petitioner is at liberty to cross examine the Commissioner and to prove that the report is either not correct or cannot be relied on. Petitioner is also at liberty to adduce evidence in support of W.P.(C)28065/2007 3 the objections raised in I.A.1613/2005. Writ petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006