IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 21974 of 2008(N) -------------------------- OS.24/2004 of MUNSIFF COURT, CHALAKUDY .................... PETITIONER: ------------ 1. CHINNAMMA, AGED 61, W/O.THOMAS MUNDAMANI HOUSE, PO.CHALAKUDY, EAST CHALAKUDY VILLAGE MUKUNDAPURAM TALUK. 2. BIJI GEJU, D/O.THOMAS, MUNDAMANI HOUSE PO.CHALAKUDY, DO.DO. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS: ------------- E.C.JOSE, AGED 60, S/O.CHAKUNNY, ELANJIPILLY HOUSE ALATHUR VILLAGE, MELADOOR DESOM,THRISSUR BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.21974 of 2008 ------------------------------- Dated this the 22nd July, 2008. J U D G M E N T Petitioners are defendants 1 to 3 and respondent the plaintiff in O.S.No.24 of 2004, on the file of Munsiff, Chalakudy. The suit is for fixation of the boundary, declaration of title and also for recovery of possession. A commission was appointed in the suit. Commissioner submitted Ext.P2 report along with a plan. Petitioners filed I.A.No.42 of 2008, an application to remit the report. It was dismissed under Ext.P5 order. This petition is filed under Article 227 of the Constitution of India challenging Ext.P5 order. 2. The learned counsel appearing for the petitioners was heard. In the light of the orders being passed, it is not necessary to issue notice to respondents in the writ petition. 3. The learned counsel for petitioners argued that under Ext.P5 order, learned Munsiff did not consider the prayer in W.P.(C) No.21974/2008 2 Ext.P4 application as it was found not maintainable. It was pointed out that the Commissioner has not properly identified the property and property cannot be fixed properly without identifying the eastern boundary of the property claimed by the respondent. It was also argued that the road on the southern side was widened and in such circumstances, without fixing the boundaries properly, plaint schedule properties cannot be fixed and without fixation of plaint schedule properties, no order for recovery of possession can be granted. The learned counsel also argued that for effectively resolving the dispute involved in the suit, eastern boundary of the property of the petitioners is to be fixed and in such circumstances, learned Munsiff should have remitted the report to the Commissioner. The learned counsel pointed out that under Ext.P5 order, learned Munsiff dismissed the application as not maintainable, on the ground that no objection was filed to the Commissioner's report and plan, and also stating that work memo was not filed. It was pointed out that Ext.P3 objection was filed to the Commissioner's report on 4.1.2004 itself. 4. It is clear from Ext.P5 order that learned Munsiff has not considered the merit of the application and instead dismissed the application based on the impression that no objection to the report was W.P.(C) No.21974/2008 3 filed. In such circumstances, Ext.P5 order is quashed. Learned Munsiff is directed to pass appropriate orders in I.A.No.42 of 2008, considering the necessity of proper identification of the property and also taking into consideration the grounds stated in Ext.P4 petition, after hearing the parties. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.