IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WP(C).No. 25653 of 2008(D) ----------------------------------- OS.176/2007 of MUNSIFF COURT, VAIKOM .................... PETITIONERS : ------------------ 1. P.SASIDHARAN, S/O KUNJAN PAPPY, RESIDING AT NAVODAYAM HOUSE, BRAHMAMANGALAM KARA, CHEMPU VILLAGE VAIKOM TALUK. 2. LEELA GOPALAN, W/O GOPALAN, ELAYIDATHU MADATHIL, VARICKAMKUNNU KARA, VELLOOR VILLAGE, VAIKOM TALUK. 3. SARALA SREEDHARAN, W/O SREEDHARAN, PAREPARAMNBIL, THUPPAMPADI KARAL, MULANTHURUTHY VILLAGE, LAMAYANNUR TALUK. 4. M.P. PRAKASAN, FAMILY WELFARE CENTRE QUARTERS, (KUDUMBA KSHEMA UPA KENDRAM), MUNDOOR ANJOOR P.O., ANDAPARAMBU DESOM, ANJOORU VILLAGE, KAIPPARAMBU PANCHAYATH, THRISSUR TALUK AND DISTICT. 5. M/P RAJAN, S/O KUNJAN PAPPI, NOW RESIDING AT THEKKADIYEL HOUSE, ELAMPALLY KARA, ANIKKADU VILLAGE, KOTTAYAM TALUK AND DISTRICT FROM NAVODAYAM BRAHMAMANGALAM KARA, CHEMPU VILLAGE VAIKOM TALUK,. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN WP(C).No. 25653 of 2008(D) RESPONDENTS : ------------------- 1. GOVINDAN, NOW RESIDING AT PARAYIL, PORUSSERY KARA MANNARKADU TALUK, PALAKKADU DISTRICT, FROM BRAHMAMANGALAM KARA, CHEMPU VILLAGE, VAIKOM TALUK. 2. DIVAKARAN, S/O KUNJU, MOOZHAKKAROTTU, BRAHMAMANGALAM KARA, CHEMPU VILLAGE, VAIKOM TALUK. 3. LAKSHMY, W/O KUNJAN PAPPY, RESIDING AT NAVODAYAM, HOUSE, BRAHAMANGLAM KARA, CHEMPU VILLAGE, VAIKOM TALUK. 4. M.P. SABU, S/O DO, RESIDING IN ....DO...DO.... THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.25653 of 2008 ------------------------------- Dated this the 26th August, 2008. J U D G M E N T Petitioners are the plaintiffs and respondents the defendants in O.S.No.176 of 2007, on the file of Munsiff Court, Vaikom. This petition is filed under Article 227 of the Constitution of India challenging Ext.P5 order passed in I.A.No.1397 of 2008, an application filed for appointing a commission to identify,measure and prepare a plan and report of the plaint schedule properties. Learned Munsiff under Ext.P5 order dismissed the application holding that when PW.1 was examined, he was asked about the reason for not taking out a commission, and it was deposed by PW.1 that the plaintiffs have earlier filed a counter claim in Ext.A7 suit (O.S.No.157 of 1995) and in that suit, a commission was appointed to identify the property claimed by them and a report and plan were submitted, which are produced as Exts.A8 and A9, and therefore, a further W.P.(C) No.25653 of 2008 2 report is not necessary. Learned Munsiff found that in such circumstances there is no necessity to appoint a commission. 2. Learned senior counsel appearing for the petitioners was heard. 3. The argument of the learned senior counsel is that at the fag end of the trial, Ext.B11 sale deed was pressed into service, which shows that the western boundary of the property is that of Mohanan in Survey No.198/9B and Ext.B11 is not a genuine transaction and no reliance can be placed on Ext.B11 and to find out, what exactly is the survey number of the property which lies to the west of the plaint schedule property, a commission should have been issued. Learned senior counsel further argued that the suit being one of 2007, appointment of a commission would not have protracted the trial and learned Munsiff should have appointed a commission. Learned senior counsel also argued that in the light of Ext.B11, it is necessary to W.P.(C) No.25653 of 2008 3 establish the survey number of the property which lies on the western boundary and to establish that Ext.B11 cannot be relied on, a report by a commission is necessary. Learned counsel also pointed out that when under Ext.P2 order, learned Munsiff had earlier granted opportunity to the petitioner to adduce further evidence and identification in the light of accepting Ext.B11, at the belated stage, there is no justification for rejecting an opportunity to the petitioner to establish the case. 4. On hearing the learned senior counsel and on going through Ext.P5 order, in the light of the materials placed, I do not find any illegality or irregularity warranting interference in exercise of the powers of this Court under Article 227 of the Constitution of India. True, under Ext.P2 order, plaintiffs were permitted to adduce evidence to disprove Ext.B11 and to identify the properties. If the case of the petitioners is that the property which lies to the west is not in R.S.No.198/9B and it is not the property covered under Ext.B11, petitioners could e establish that W.P.(C) No.25653 of 2008 4 fact by producing the resurvey plan or the document whereunder the western property was transferred. Learned counsel argued that the plan marked as Ext.C3 in O.S.No.13 of 1985 which is marked as Ext.A6 in this suit and survey sketch of the property in Survey No.198/9A and 198/9B and 198/11 produced and marked as Ext.A10 establish that. If that be the case, with that materials, petitioners can prove, in what survey number, western boundary property stands. Petitioners are entitled to rely on Exts.A8 and A9 to prove that fact. In such circumstances, I do not find that a commission is to be appointed for that purpose, as sought for. Petitioners are also entitled to produce any other document, whereunder western property was transferred. In such circumstances, the writ petition is dismissed. 5. Learned senior counsel then submitted that petitioners may be granted an opportunity to produce the documents and the trial court may be directed to grant an adjournment for that purpose. Considering the submission, W.P.(C) No.25653 of 2008 5 learned Munsiff is directed to grant sufficient opportunity to the petitioners to produce the evidence, as provided under Ext.P2 order, and to grant an adjournment for ten days. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.