IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 OP(C).No. 957 of 2011(O) ------------------------------------ O.S.NO. 1040/2009 of IST ADDL.MUNSIFF'S COURT, THRISSUR .................... PETITIONER -------------------- MOHANAN,S/O.PANDATHRA CHATHUNNY, PADIYAM VILLAGE,DESOM,THRISSUR TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): -------------------------- 1. DILEEP SINGH,S/O.THATTIL PRABAKARAN, PADIYAM VILLAGE,DESOM,THRISSUR TALUK.REP.BY ITS MUKTHYAR AGENT,RANJITH KUMAR,S/O.THATTIL PRABAKARAN, PADIYAM VILLAGE,DESOM,THRISSUR TALUK, PIN-680 641. 2. KARTHIKEYAN,S/O.PANDATHRA CHATHUNNY, PADIYAM VILLAGE, DESOM,THRISSUR TALUK, PIN-680 641. 3. RAJAGOPALAN,S/O.PANDATHRA CHATHUNNY, PADIYAM VILLAGE,DESOM,THRISSUR TALUK, PIN-680 641. R1 BY ADV. SRI.RENJITH THAMPAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 2/- -2- O.P.(C)NO.957/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.1040 OF 2009 ON THE FILE OF 1ST ADDL.MUNSIFF COURT,THRISSUR,DATED 08/04/2009. P2 COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S.NO.1040 OF 2009 ON THE FILE OF 1ST ADDL.MUNSIFF COURT, THRISSUT, DATED 14/10/2009. P3 COPY OF THE COMMISSION REPORT IN I.A.NO.3333 OF 2009 IN O.S.1040 OF 2009 ON THE FILE OF 1ST ADDL.MUNSIFF COURT, THRISSUT, DATED 25/05/2009. P4 COPY OF THE COMMISSION APPLICATION AS I.A.NO.155 OF 2011 IN O.S.1040 OF 2009 ON THE FILE OF 1ST ADDL.MUNSIFF COURT, THRISSUT,DATED 04/01/2011. P5 COPY OF THE OBJECTION FILEDBY THE PETITIONER IN I.A.NO.155 OF 2011 IN O.S.NO.1040 OF 2009 ON THE FILE OF 1ST ADDL.MUNSIFF COURT, THRISSUR,DATED 05/01/2011. P6 COPY OF THE ORDER IN I.A.NO.155 OF 2011 IN O.S.NO.1040 0F 2009 PASSED BY THE 1ST ADDL.MUNSIFF COURT, THRISSUT, DATED 11/01/2011. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE FIELD SKETCH OF SY.NO.353 OF PADIYAM VILLAGE. /TRUE COPY/ P.A.TO.JUDGE K.T.SANKARAN, J. ------------------------------ O.P(C)No.957 OF 2011 ------------------------------ Dated this the 7th day of June, 2011 JUDGMENT The third plaintiff in O.S.No.1040 of 2009 challenges the order dated 11th January, 2011 in I.A.No.155 of 2011 in O.S.No.1040 of 2009 by which the court below allowed the application filed by the first respondent/defendant to appoint a Commissioner for inspection of the disputed property with the help of a surveyor. 2. The suit is for mandatory injunction to restore the plaint schedule property to its original position. The plaintiffs alleged that the nature of the plaint schedule property was altered by the defendant. A commissioner was appointed, who filed a report and rough sketch. The suit was listed for trial and the third plaintiff was examined as PW1. He stated in evidence that he has no objection for measuring the property with the help of a surveyor and in finding out the exact boundary of the property. The defendant filed O.P(C)No.957 OF 2011 2 I.A.No.155 of 2011 to appoint a Commissioner. The court below, as stated earlier, allowed that application on condition of payment of costs of Rs.500/- to the plaintiffs. 3. No prejudice will be caused to the petitioner or any other plaintiff by appointing a Commissioner. Inspection of the property by the Commissioner with the help of a surveyor would enable the court to properly adjudicate upon all the disputes involved in the case. 4. No interference is called for in the order passed by the court below. 5. The learned counsel for the petitioner submitted that it is not clear from the order of the court below as to whether the same Commissioner would be appointed or another Commissioner would be appointed. The counsel submits that without setting aside the report of the first Commissioner, another Commissioner cannot be appointed. The defendant has no objection in appointing the same Commissioner who filed the report earlier. Therefore, the O.P(C)No.957 OF 2011 3 Lower Court shall appoint the same Commissioner, who submitted the report earlier. The order passed by the court below is modified to that extent and the Original Petition is disposed of as above. K.T.SANKARAN, JUDGE. cms