IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 28361 of 2008(B) -------------------------- AGAINST THE ORDER DATED 04/07/2008 IN IA.111/2007 IN OS.10/2005 of MUNSIFF COURT, ALATHUR .................... PETITIONER(S): --------------- 1. ABDUL NAZAR, S/O.MUHAMMED, PALLATHU VEEDU, TRIPPALCOR, PUTHIYANGAM AMSOM DESOM, ALATHUR TALUK. 2. AMINA UMMA, W/O.MUHAMMED, NARIPOTTA, KUNISSERRY AMSOM, ALATHUR TALUK. 3. HARUN, S/O.MUHAMMED, NARIPOTTA, KUNISSERRY AMSOM, ALATHUR TALUK. 4. PIARIJAN, W/O.ABDULRAHIMAN, KALATHIL VEEDU, MATHOOR AMSOM, ALATHUR TALUK. BY ADV. SRI.T.M.CHANDRAN RESPONDENT(S): --------------- BASHEER, S/O.ABDULKHADER, PALLATHU VEEDU, THRIPPALOOR, PUTHIYANGAM AMSOM DESOM, ALATHUR TALUK. ADV. SRI.SAJAN VARGHEESE K. FOR R1 SRI.LIJU. M.P FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.28361/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF I.A.NO.663/2005 DATED 23.6.2005 IN O.S.NO.10/2005 ON THE FILE OF THE MUNSIFF COURT, ALATHUR. EXT.P2: COPY OF WORK MEMO DATED 30.7.2005 FILED BY THE DEFENDANTS. EXT.P3: COPY OF COMMISSION REPORT AND PLAN DATED 8.1.2007. EXT.P4: COPY OF OBJECTION DATED 19.1.2007 FILED BY THE DEFENDANTS. EXT.P5: COPY OF I.A.NO.111/07 DATED 19.1.2007 FILED BY THE DEFENDANTS. EXT.P6: COPY OF OBJECTION DATED 3.2.2007 FILED BY THE PLAINTIFF. EXT.P7: COPY OF DEPOSITION DATED 17.1.2006 OF CW1. EXT.P8: COPY OF DEPOSITION DATED 31.5.2008 OF CW2. EXT.P9: COPY OF ORDER DATED 4.7.2008 IN I.A.NO.111/07 IN O.S.NO.10/2005 ON THE FILE OF THE MUNSIFF COURT, ALATHUR. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.28361 OF 2008 (B) ----------------------------------- Dated this the 13th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records relating to Exts.P1 to P9. ii. to pass appropriate orders setting aside Ext.P9 order dated 4.7.2008 in I.A.No.111 of 2007 in O.S.No.10/2005 on the file of the Court of Munsiff Court, Alathur. iii. to pass appropriate orders allowing the prayers sought for in Ext.P5 petition. iv. to stay all further proceedings in O.S.No.10/2005 on the file of Munsiff Court, Alathur. 2. Petitioners are the defendants in O.S.No.10 of 2005 on the file of the Munsiff Court, Alathur. Suit is one for fixation of boundary and consequential relief, and the WPC.28361/08 2 respondent is the plaintiff. Challenge raised in the writ petition is against Ext.P9 order passed by the learned Munsiff declining the request of the defendants for setting aside a commission report and plan prepared by an Advocate Commissioner deputed for conducting local inspection and measuring out the suit property with the assistance of a surveyor. 3. Notice given, the respondent/plaintiff has entered appearance. I heard the counsel on both sides. Normally, this Court will be very much reluctant to interfere with any findings or order made by the subordinate courts with respect to a report and plan collected in a pending suit or proceedings since that material at the most has to be treated as only a part of the evidence, which has to be appreciated with reference to other pieces of evidence let in the case. However, after hearing the counsel on both sides, I find the learned Munsiff has not adverted to the objections raised by the defendants with regard to the report and plan in its correct perceptive and that has resulted in forming of wrong conclusion causing WPC.28361/08 3 manifestation of injustice. When that be the case, I find this is a fit case where the visitorial jurisdiction of this Court is called for to interfere with Ext.P9 order passed by the learned Munsiff. Admittedly, there were proceedings between the parties before the Tribunal constituted under the Local Authorities Act in respect of statutory violations imputed over a construction made by the respondent/plaintiff in the suit property, which is described as having an extent of 11.5 cents. Pending such proceedings, the present suit had been filed for the reliefs aforementioned. It is submitted that though the Tribunal has formed a conclusion on the materials placed that there was statutory violation in the construction and, for rectification thereof, it has directed implementation of its order subject to the decision to be rendered by the civil court in the present suit. It is also submitted that the decision of the Tribunal making such reservation has been questioned by the defendants filing a writ petition before this Court, which after being admitted and taken on file, is also pending for consideration. Whatever that be, in examining the merit of Ext.P9 order passed by the learned Munsiff negativing the WPC.28361/08 4 objections raised by the defendants for setting aside the report and plan, the one and only question that emerges for consideration is whether the report and plan prepared by the Advocate Commissioner suffer from serious infirmities rendering it unworthy of acceptance. The learned counsel for the petitioners inviting my attention to the suit document, a partition deed, with reference to the report and plan prepared by the Advocate Commissioner contended that there is no dispute between the parties as to the extent of the property covered by the deed as having only 46 cents, nothing less or more, and also that the four corner points fixed in the plan prepared by the surveyor are not under challenge. According to the counsel, the plan produced with the report has been challenged as it does not tally with the side measurements with respect to the four items covered by the deed described as A to D schedule. As regards the fixation of E schedule property, a minor variation in the side measurement, according to the counsel, has decisive effect in the present case as that would have a telling effect as to whether the construction put up by the plaintiff in his property has been WPC.28361/08 5 made in compliance with the statutory requirements or not. In the backdrop of the decision rendered by the Tribunal that there was a statutory violation, the learned Munsiff should have examined the merit of the report and plan and also noticed that any difference in the side measurements in the plan appended to the commission report with regard to the title deed require to be explained properly, according to the counsel. If satisfactory explanation for difference in side measurements noticed is not given a fresh report and plan, after setting aside the present report and plan, should have been ordered, submits the counsel. It is pointed out that whereas in the title deed, the side measurements of D schedule property in north south direction has been shown as having an extent of 9 m, in the plan produced by the commissioner, it has been shown as having only 8.2 m. So far as the east west direction of that property also, it is submitted, there is much variation from that given under the deed. My attention has also been invited to the evidence of the surveyor, who assisted the commissioner, who had been examined by the defendants to substantiate their objections to the report WPC.28361/08 6 and plan, that the commissioner has not produced the plan handed over by him but produced another plan before the court. Surveyor has expressed his inability to vouchsafe the correctness of the plan produced by the commissioner before the court without having a reference to the plan which was handed over by him to the Advocate commissioner. Despite such statements being made by the surveyor before the court, it is seen, the learned Munsiff has not examined the objections canvassed by the defendants impeaching the merit of the report and plan produced by the commissioner. Ext.P9 order would disclose that the learned Munsiff has discarded the difference in the side measurements of the properties shown as A to D in the plan produced by the commissioner as insignificant and not vitally affecting the measurements made by the Advocate Commissioner over the suit property. Commissioner has located survey stones for the identification and the plan has been prepared in accordance with the field measurement book, it seems, weighed heavily with the learned Munsiff to conclude that the objections raised to the report and plan are meritless. What was the real issue involved in WPC.28361/08 7 the case requiring adjudication by the court, it appears, was lost sight by the learned Munsiff when it has discarded the objections raised to the report and plan that the side measurements of the properties shown as A to D schedule differ from the side measurements described under the deed. None of the parties in the suit has a case that the side measurements shown under the deed with respect to their properties are not correct. When that be the case, the property has to be identified and fixed with reference to the description given under the deed and not on the basis of the survey measurements. Fixation of the survey stones is only an enabling factor in identifying the property, but, to resolve the dispute in the given facts of the case identification of the property with reference to the description of each items under the partition deed has to be done in accordance with measurements and specifications given in the deed. Setting aside Ext.P9 order, I direct the learned Munsiff to depute an experienced Advocate commissioner to measure out the property again with the assistance of a qualified surveyor, and to prepare a fresh report and plan. Needless to point out, the WPC.28361/08 8 report and plan prepared by the previous commissioner shall stand set aside. The batta to the commissioner and surveyor shall be shared equally by both parties. Subject to the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp