IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 OP(C).No. 1115 of 2011(O) ------------------------- OS.156/2004 of MUNSIFF COURT, THALASSERY .................... PETITIONER : ----------------------- KANDACHERI SAROJINI,D/O.NANI, AGED 51 YEARS, PACHAPOYIL HOUSE, KADAMBUR AMSOM & DESOM, P.O. EDAKKAD, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): --------------- V.P.VASU,MELEDATH,VALIYAPURAYIL, KADAMBUR AMSOM & DESOM, EDAKKAD PO, KANNUR DISTRICT - 670 001. ADV. SRI.V.P.REGHURAJ SRI.BIJU K. VAVA SRI.V.GIRISHKUMAR SRI.V.SHYAM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1115/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE PLAINT IN O.S.NO.156/2004 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, THALASSERY. EXT.P2: COPY OF THE WRITTEN STATEMENT OF THE FIRST DEFENDANT/PETITIONER IN THE SUIT O.S.NO.156/2004, MUNSIFF COURT, THALASSERY. EXT.P3: COPY OF THE REPORT AND SKETCH PREPARED BY THE FIRST ADVOCATE COMMISSIONER. EXT.P4: COPY OF THE AFFIDAVIT SUPPORTING THE APPLICATION TO SET ASIDE THE COMMISSIONER'S REPORT FILED BY THE RESPONDENT. O.S.NO.156/04, MUNSIFF COURT, THALASSERY. EXT.P5: COPY OF THE COUNTER FILED BY THE PETITIONER AGAINST EXT.P4. EXT.P6: COPY OF THE REPORT AND SKETCH PREPARED BY ADVOCATE COMMISSIONER MR.M.K.MOHANAN IN O.S.NO.156/04 MUNSIFF COURT, THALASSERY. EXT.P7: COPY OF THE AFFIDAVIT IN SUPPORT OF I.A.NO.1238 OF 2010 TO SET ASIDE THE COMMISSIONER'S REPORT IN EXT.P6 FILED BY THE PETITIONER. EXT.P8: COPY OF THE ORDER DATED 23.7.2010 IN I.A.NO.1338/10 OF THE MUNSIFF COURT, THALASSERY. EXT.P9: COPY OF R.P.NO.1651/2010 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, THALASSERY. EXT.P10: COPY OF OBJECTION FILED BY THE PETITIONER AGAINST EXT.P9 EXT.P11: COPY OF THE JUDGMENT DATED 4.10.2010 IN O.P.(C) NO.176/2010 OF THIS HON'BLE COURT. EXT.P12: COPY OF THE ORDER DATED 11.2.2011 IN I.A.NO.1338/10 IN O.S.NO.156/2004 OF MUNSIFF COURT, THALASSERY. RESPONDENT'S EXHIBITS: EXT.R1(a) : COPY OF THE MEMO DATED NIL SUBMITTED BY THE ADVOCATE COMMISSIONER BEFORE THE COURT. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1115 of 2011 --------------------------------------- Dated this the 1st day of June, 2011 JUDGMENT The petitioner is the first defendant in O.S.No.156 of 2004 on the file of the court of the Munsiff of Thalassery. The suit was filed by the respondent for fixation of boundary. 2. On the application of the plaintiff, a Commissioner was appointed (Advocate Rathnakaran) who filed Exhibit P3 report dated 9.7.2008. The plaintiff filed objections to that report and on the application of the plaintiff, the Commissioner's report was set aside. Advocate M.K.Mohanan was appointed as the Commissioner. The second Commissioner filed Exhibit P6 report dated 5.4.2010. 3. The first defendant filed I.A.No.1338 of 2010 to OPC 1115/2011 2 set aside the report submitted by Advocate M.K.Mohanan. The court below passed Exhibit P8 order dated 23.7.2010 appointing Advocate Rathnakaran to inspect the property and to note certain matters sought for in the work memo. The plaintiff filed I.A.No.1651 of 2010 to review the order dated 23.7.2010 appointing Advocate Rathnakaran as the Commissioner. The Review Petition was allowed and the order dated 23.7.2010 was set aside. 4. Thereafter, I.A.No.1338 of 2010 was heard by the court below and by Exhibit P12 order dated 11.2.2011, the application was dismissed, which is under challenge in this Original Petition filed by the first defendant. 5. The suit is of the year 2004. The Commissioner filed a report and plan. The court below noticed that both parties are claiming rights over a disputed portion and that dispute has to be resolved in the suit. The contention raised OPC 1115/2011 3 by the petitioner/first defendant that the Commissioner omitted to note certain details was met by the court below stating that those matters can be proved by other evidence. In a suit of the year 2004, the court below was not inclined to set aside the second Commissioner's report. I do not find any ground to interfere with the order passed by the court below as no jurisdictional error or error of law is made out. 6. The learned counsel appearing for the petitioner submitted that the Commissioner has arrived at certain findings in the report. He referred to certain portions of the report. The counsel submitted that the Commissioner is not entitled to arrive at such conclusion on facts and he can report only the necessary facts for enabling the court to arrive at a conclusion. The petitioner would be entitled to put forward these contentions in the trial court at the time of trial and final hearing and for that purpose it is not necessary to set aside the Commissioner's report. If the court finds that OPC 1115/2011 4 any part of the Commissioner's report cannot be accepted, nothing prevents the court from rejecting that part, though the prayer for setting aside the Commissioner's report was not granted. As regards the additional facts sought to be collected, if the court finds that an inspection by the Commissioner is required for the proper disposal of the suit, nothing prevents the court from appointing the same Commissioner (Advocate M.K.Mohanan) to ascertain the same. With the above observations, the Original Petition is disposed of. K.T.SANKARAN JUDGE csl