IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 OP(C).No. 2888 of 2011(O) -------------------------------------- OS.1705/2004 of PRL.M.C.,IRINJALAKUDA .................... PETITIONER: ------------------- BHAGEERATHAN,AGED 55, S/O.NAMBYARUVEETTIL PADMAVATHIYAMMA, IRINJALAKUDA VILLAGE AND DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ------------------------ BHAMA, D/O.NAMBYARUVEETTIL PADMAVATHIYAMMA, PULLUR VILLAGE AND DESOM,MUKUNDAPURAM TALUK 680001,IRINJALAKUDA P.O., THRISSUR. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2888 OF 2011 APPENDIX PETITIONER'S EXHIBITS EXT.P1 A TRUE COPY OF THE PLAINT IN O.S.NO.1705 OF 2004 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT,IRINJALAKUDA DATED 20/09/2004. EXT.P2 A TRUE COPY OF THE COMMISSIONER'S REPORT AND PLAN WITH THE REPORT OF THE SUPERINTENDENT OF SURVEY DATED 31/3/2010. EXT.P3 A TRUE COPY OF THE I.ANO.3015/2010 IN EXT-P1 SUIT DATED 3/9/2010 EXT.P4 A TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENT HEREIN TO EXT.P3 DATED 27/7/2011. EXT.P5 A TRUE COPY OF THE ORDER PASSED IN IA NO.3015/2010 IN EXT-P1 SUIT DATED 8/7/2011. RESPONDANTS'S EXHIBITS: nil THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2888 of 2011 ==================================== Dated this the 23rd day of September, 2011 J U D G M E N T In a suit instituted by petitioner in the year, 2004 praying for fixation of boundaries for plaint A and B schedules and for mandatory injunction to direct respondent to remove the foundation constructed by the respondent allegedly trespassing into plaint A schedule property, Advocate Commissioner was appointed and he submitted report and plan. Petitioner was not satisfied with the report and plan and requested for remission of the same. That request was allowed, report and plan were set aside and a fresh report and plan were obtained. Petitioner being not satisfied with the same preferred two objections on 13.07.2010 and 03.09.2010. In the first objection it was stated that there was no need to measure the property as per the prior documents of title and that measurement need be in accordance with the partition deed relied on by the parties. In the second objection various other contentions were also raised. There was a request for a further remission of the report which learned Munsiff as per Ext.P5, order rejected observing that there is no O.P(C) No.2888 of 2011 -: 2 :- gross error or inadequacy in the report and plan requiring the same to be remitted again. That order is under challenge. Learned counsel contended that suit being one for mandatory injunction and recovery of possession based on title it is necessary that the properties are measured on the basis of partition deed No.1047 of 1995 based on which parties lay claim over plaint A and B schedules. It is also submitted by learned counsel that learned Munsiff has taken the view that the earlier report and plan superseded by the report and plan are submitted by the Commissioner after remission. According to the leaned counsel there is no measurement of the property and hence the existing report and plan cannot be accepted. 2. I have gone through the relevant records and the order passed by the learned Munsiff. It is not disputed as requested by petitioner, assistance of the Surveyor was sought for measurement and the Commissioner submitted report and plan on 07.07.2010. That report and plan were objected by both sides and as aforesaid, petitioner filing two objections. Based on the further request for remission the Surveyor was examined as P.W.1. He stated that side measurement in the partition deed did not tally with the property on verification and that all the four items covered by the partition deed lie within the well defined O.P(C) No.2888 of 2011 -: 3 :- common boundary. Exhibit C1(a) is the plan proved through P.W.1. Exhibit C1(a) also shows that the four sides are separately marked and that total extent of the property is given. But it would appear from the report and plan that all the items except “D” schedule in the partition deed (which is plaint B schedule herein) has lessor extent. Plaint B schedule is situated on the west of plant A schedule. Advocate Commissioner has reported that petitioner has a lessor extent by ½ a cent which is in the possession of the respondent. It is also stated in the report that reduction in extent of the property by ½ cent in the plaint A schedule can be in B or D schedule in the partition deed. 3. Learned counsel has invited my attention to the observations made by the learned Munsiff in paragraph 15 of the impugned order where learned Munsiff stated that the prayer of petitioner is to restore the earlier report and plan as well as the commission report which were remitted by this Court and therefore the said prayer is practically infructuous. 4. I am not inclined to think that by the said observation learned Munsiff has taken a final decision on the question. I must also bear in mind that in the report and plan submitted after remission it is stated that the reduction by ½ cent in the plaint A schedule could either be in B or D schedule in the partition deed. O.P(C) No.2888 of 2011 -: 4 :- 5. This Court has taken consistent view that unless the report and plan prepared by the Commissioner are grossly in error it is not as if every inadequacy is required to be gone into a proceeding under Article 227 of the Constitution. Viewed in that line I am not inclined to think a further remission of the report and plan is required. I must also bear in mind that the suit is of the year 2004. But I make it clear that in case an appeal is filed against the judgment and decree of learned Munsiff it is open to the petitioner to challenge correctness of Ext.P5, order notwithstanding the dismissal of this Original Petition. With the above observation this Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv