IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 WP(C).NO. 10495 OF 2010(O) -------------------------------------------- AGAINST THE ORDER IN I.A 1393/2009 IN OS.523/2007 OF MUNSIFF COURT, HOSDRUG .................... PETITIONER(S): --------------------- KOTTAN RADHAKRISHNAN, AGED 34 YEARS, REP.BY POWER OF ATTOERNEY ACHUTHAN ADIYATH, ADIYATH HOUSE, CHENGALA VILLAGE, PO THEKKIL, KASARAGOD TALUK. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): ------------------------- 1. A.KUNHIKANNAN NAIR, AGED 37 YEARS, ADIYODANMOOLA, MAYILATTY IN PANAYAL VILLAGE OF HOSDURG TALUK, PO MAYILATTY. 2. A.NARAYANAN NAIR, AGED 45 YEARS, ADIYODANMOOLA, MAYILATTY IN PANAYAL VILLAGE OF HOSDURG TALUK, PO MAYILATTY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/07/2010 ALONG WITH W.P(C) NO.20852 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.10495 of 2010 and W.P(C) No.20852 of 2010 ==================================== Dated this the 06th day of July, 2010 J U D G M E N T These Writ Petitions are in challenge of separate orders passed by learned Munsiff, Hosdurg on I.A. Nos.1393 and 1455 of 2009 respectively in O.S. No.523 and 474 of 2007 of that court. Petitioner filed O.S. Nos.523 of 2007 against respondents- defendants seeking prohibitory injunction against trespass into the suit property or interfering with construction work therein. Petitioner claimed title and possession of the suit property as per gift deed No.1828 of 2007 executed by his father. He claimed that respondents-defendants have property on north and west of the suit property, they are attempting to trespass into the said property and cause obstruction to the construction work. Respondents denied identity of the suit property and filed O.S. No.474 of 2007 against petitioner seeking a decree for prohibitory injunction. Advocate Commissioner deputed in the case measured properties with assistance of Taluk Surveyor and submitted report and plan. Petitioner, on the contention that report and plan are W.P(C) Nos.10495 & 20852 of 2010 -: 2 :- not correct, finding therein are not correct and are misleading and that Commissioner failed to measure and identify the suit properties properly, filed the above referred applications to set aside report and and plan. Applications were opposed by the respondents-defendants. Learned Munsiff vide the impugned orders dismissed the applications holding that challenge to the report and plan is unsustainable and that at any rate it is open to the petitioner to examine Advocate Commissioner and Surveyor at the time of trial and bring out serious infirmities if any in the report and plan when it is open to resort to remedial measures in that regard. Learned counsel for petitioner contended that report and plan cannot be accepted for reasons stated in the applications. 2. One objection taken was that there was no proper identification of disputed properties and that measurement taken was not proper. Commissioner has reported that properties were measured with the assistance of Surveyor with reference to documents of title relied on by both sides and the field measurement book. Another objection taken was that entire property covered by the partition deed (6.50 acres allotted to 11 persons including the predecessor-in-interest of petitioner) had to be measured. Learned Munsiff observed that those persons are not parties to the suit and hence it was not possible to measure W.P(C) Nos.10495 & 20852 of 2010 -: 3 :- their property. Learned Munsiff also pointed out that it is not explicitly stated by petitioner that what direction issued to the Advocate Commissioner was not complied. 3. I have heard learned counsel for petitioner in these Writ Petitions. Admittedly Commissioner or Surveyor was not examined to substantiate contentions raised by petitioner in the applications to set aside the report and plan. Merely based on what is stated in the affidavits in support of the applications the report and plan cannot be set aside. Moreover right of petitioner to seek remedial measures on proof of serious infirmities if any in the report and plan is not foreclosed. Learned Munsiff has made it clear in paragraph 14 of the impugned orders that it is open to the petitioner to examine Advocate Commissioner and Surveyor at the time of trial and point out serious infirmities (if any) in the report and plan in which case it is within the power of court to take appropriate remedial measures. In the above circumstances there is no reason to interfere with the impugned orders. Resultantly, Writ Petitions fail and are dismissed. THOMAS P. JOSEPH, JUDGE. vsv