IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 10958 of 2010(O) -------------------------- OS.78/2008 of M.C.,VADAKKANCHERRY .................... PETITIONER(S): --------------- KRISHNANKUTTY, AGED 57, S/O. PADINJATHARA ITTIRA, PULLAMKADAM DESOM, THEKKUMKARA DESOM, MALLAPPILLY TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- KUNJAPPAN @ BAHULEYAN, S/O. AZHAKANTHARAPARAMBIL KANDAN, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ADV. SRI.N.C.JOSEPH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.No.10958 OF 2010 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT IN O.S.NO.78/2008 ON THE FILE OF THE MUNSIFF COURT, WADAKKANCHERRY DATED 2/2/2008. EXT.P2: A TRUE COPY OF THE DOCUMENT BEARING NO.914/1994 DATED 9/3/1994 OF THE WADAKKANCHERRY SRO. EXT.P3: A TRUE COPY OF THE REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER IN EXT.P1 SUIT DATED 6/7/2009. EXT.P4: A TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER DATED 7/10/2009. EXT.P5: A TRUE COPY OF THE ORDER PASSED BY THE LEARNED MUNSIFF WADAKKANCHERRY IN IA NO.1981(a)/2009 IN O.S.NO.78/2008 DATED 24/2/2010. // True Copy// PA to Judge K.M.JOSEPH, J. * * * * * * * * * * * * * W.P.C.No.10958 of 2010 ---------------------------------------- Dated this the 30th day of September 2010 J U D G M E N T The petitioner is the first defendant in a suit filed by the respondent herein before the Munsiff Court, Wadakkancherry for fixation of boundary and for an injunction order. In the suit filed by the plaintiff, an Advocate Commissioner was appointed by the learned Munsiff to identify the property. A report was filed by the Advocate Commissioner. Being dissatisfied with the report, an application has been filed by the petitioner to set aside the report and remit the same to the same Advocate Commissioner. It is this application which has been rejected by Ext.P5 and the petitioner challenges the same in this proceedings. 2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent. The learned counsel for the petitioner would submit that the court below has not acted legally in rejecting the application. The learned counsel took me through the order. He would point out that in a suit for fixation of boundary, the report filed by the Advocate Commissioner is a very crucial piece of documentary evidence. W.P.C.No.10958 of 2010 2 3. In this case, it is pointed out that the petitioner was admittedly the owner of 3 Acres and 49 cents which he obtained by way of assignment from the Government. Out of the assignment, he has assigned an extent of one acre 25 cents to the plaintiff/respondent. Ext.P2 is the assignment in favour of the respondent. He would point out that a perusal of the description of the property and the boundaries would show that the petitioner does not have any property on the western side of the property assigned to the respondent. On the other hand, the description of the boundary would show that the petitioner has property on the southern side and eastern side. Then, he took me through the plan and report Ext.P3 submitted by the Advocate Commissioner. The plan and report was prepared with the assistance from a retired Surveyor of the Government of Kerala. He would point out that in the description of the boundaries, the petitioner is shown as having property on the western side of the plaint scheduled property. He would submit that this has the effect of cutting the property on the southern side into two pieces. The petitioner's property is shown as A and C. Part of A property belonging to the petitioner is shown as W.P.C.No.10958 of 2010 3 lying on the western side and part of it is shown as lying on the southern side of B property which is shown as the plaint schedule property. In between A and C, there is a puramboke land. He would submit that this matter was clearly projected before the learned Munsiff. But the learned Munsiff has only dealt with it in a tentative manner. He also voiced the complaint that while the learned Munsiff observed in the order that the order rejecting his application to set aside the Commissioner's report will be without prejudice to the right of the petitioner at the trial stage to make his good his contentions against the Commissioner's report, going by the experience in other cases, this assurance in such orders is not translated into actual decisions on the same lines. 4. On the other hand, the learned counsel for the respondent would reiterate that no interference is called for. He would submit that the Advocate Commissioner, with the help of the Surveyor, has measured the property bearing in mind the document as also the pattayam in favour of the petitioner himself and on the ground realty being that persons whose names are mentioned as having possession of lands on the western side of W.P.C.No.10958 of 2010 4 the property of the respondent in Ext.P2 do not actually have lands on the western side. This ground reality is reflected in the Commission report. It is also submitted that this is only an attempt to delay the matter further. 5. At the outset, I must remind myself of the nature of the jurisdiction under Article 227 of the Constitution of India. This Court, acting under Article 227 of the Constitution of India, is not an appellate court. It would be improper to re-appreciate the matters for the purpose of coming to another conclusion. Bearing in mind the limitation of the jurisdiction, I shall proceed to consider the contention of the petitioner. 6. It is true, as pointed out by the petitioner, that in Ext.P2 assignment in favour of the petitioner, the petitioner is not shown as having any land on the western side of the land assigned in favour of the assignee namely the respondent. But, at the same time, I must also notice that the petitioner has specifically raised this contention. It is not as that the learned Munsiff had not considered his contention and acted in total disregard of the same. It may not be proper for me to describe the impugned order as a perverse order. At any rate, the W.P.C.No.10958 of 2010 5 learned Munsiff has also left it open to the petitioner to challenge the report and plan at the stage of final trial. 7. In such circumstances, the petitioner does not have a case for interference in this matter as such. But I may hasten to add that a Commissioner's report is a very crucial item of evidence in a suit for fixation of boundaries. Great care has to be taken by the court in coming to a final conclusion regarding the correctness of the contents of the Commissioner's report in such case. The learned Munsiff must indeed consider the matter as he has stated that he will by bestowing his fullest attention to the contentions which will be advanced with the aid of the entirety of evidence in the matter. 8. Subject to these observations, the writ petition is dismissed. (K.M.JOSEPH, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.10958 of 2010 6 W.P.C.No.10958 of 2010 7 W.P.C.No.10958 of 2010 8 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010