IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 WP(C).NO. 23198 OF 2010(O) ----------------------------------------- OS.136/2006 OF MUNSIFF COURT, HOSDRUG .................... PETITIONER(S): ---------------------- CHIRAYATH BABY JOY, AGED 49 YEARS, W/O.CHIRAYATH VARKEY JOY, RESIDING AT KODANAD IN KODANAD VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): -------------------------- ITTOM PARAMBIL MARRY, AGED 53 YEARS, W/O.E.M.JOSEPH, RESIDING AT KANNANKUNNU, WEST ELERI VILLAGE, HOSDURG TALUK, PUNNAKUNNU P.O.-671 535. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT AS O.S. NO.136 OF 2006 BEFORE THE MUNSIFF COURT, HOSDURG FILED BY THE RESPONDENT. EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT DATED 11.7.2006 IN O.S. NO.136 OF 2006 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, HOSDRUG. EXHIBIT P3 TRUE COPY OF WRITTEN STATEMENT DATED 18.9.2006 IN O.S. NO.140 OF 2006 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, HOSDURG. EXHIBIT P4 TRUE COPY OF REPORT DATED 30.7.2009 FILED BY THE ADVOCATE COMMISSIONER IN O.S. NO.136 OF 2006. EXHIBIT P5 TRUE COPY OF PLAN PREPARED BY THE ADVOCATE COMMISSIONER. EXHIBIT P6 TRUE COPY OF OBJECTION PETITION DATED 3.11.2009 IN O.S. NO.136 OF 2006 PREFERRED BY THE PETITIONER. EXHIBIT P7 TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN O.S. NO.136 OF 2006 ON 6.12.2009. EXHIBIT P8 TRUE COPY OF REJECTION ORDER DATED 25.6.2010 IN O.S. NO.136 OF 2006. EXHIBIT P9 TRUE COPY OF ROUGH SKETCH PREPARED BY THE PETITIONER WITH THE ASSISTANCE OF A SURVEYOR. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.23198 of 2010 ==================================== Dated this the 20th day of August, 2010 J U D G M E N T Respondent is served on this Writ Petition but there is no response. 2. Exhibit P8, order is under challenge at the instance of petitioner-defendant. Petitioner and her husband claims to have purchased 5.24 acres as per assignment deed Nos.470, 472, 473 of 2003. While so respondent from whom the property is said to be purchased filed O.S. No.136 of 2006 against petitioner (and O.S. No.140 of 2006 against her husband) for recovery of possession of certain items. In O.S. No.136 of 2006 recovery sought for is of 0.76 cents. An Advocate Commissioner was appointed to identify the property with assistance of a Surveyor. Petitioner filed work memo to ascertain certain matters which according to her are necessary for disposal of the suit. Advocate Commissioner inspected the property on 23.12.2008 and submitted Exts.P4 and P5, report and plan. Petitioner preferred objection to that report and plan and requested that report and plan be set aside. That application was dismissed by the learned Munsiff as per Ext.P8, order which is under challenge. Learned W.P(C) No.23198 of 2010 -: 2 :- counsel for petitioner contends that there was no notice to the petitioner before inspection in that the Advocate Commissioner gave notice to the petitioner for inspection on 21.12.2008 but inspection was made on 23.12.2008 regarding which petitioner had no notice. It is pointed out that the suit property is situated at Kasargod while petitioner and her husband belong to Kodanad in Ernakulam District and in the absence of notice petitioner could not be present at the spot at the time of inspection and measurement on 23.12.2008. It is also contended by learned counsel that predecessor-in-interest of respondent owned large extent of land out of which a portion was surrendered to the Government and which was assigned to landless labourers. They had title only over 5.24 acres which petitioner and her husband acquired as per the assignment deeds referred to above. Grievance of petitioner is that as per Exts.P4 and P5 a portion of property acquired by petitioner and her husband as per the assignment deeds stated is shown as land surrendered to the Government and assigned to landless labourers. Learned counsel contends that there was no proper measurement of the property. 3. I have gone through Exts.P4 and P5, report and plan. In Ext.P4 there is reference to the properties referred to in the title deeds relied on by petitioner and her husband also being W.P(C) No.23198 of 2010 -: 3 :- measured. The question whether that measurement is correct or not is a matter to be decided by the court below. Admittedly the Advocate Commissioner or Surveyor were not examined on I.A. No.2461 of 2009 filed by the petitioner to set aside Exts.P4 and P5. Without examining the Commissioner and/or Surveyor merely based on the affidavit of petitioner report and plan cannot be set aside. But I am inclined to give petitioner an opportunity to examine the Advocate Commissioner and Surveyor and show that Exts.P4 and P5 are patently not correct as petitioner contends. In that view Ext.P8, order is liable to be set aside and I do so. Resultantly this Writ Petition is allowed by way of remand. Exhibits P8, order is set aside. I.A. No.2461 of 2009 is remitted to the court of learned Munsiff, Hosdurg for further enquiry. Petitioner will get an opportunity to examine the Advocate Commissioner and/or Surveyor as the case may be. Learned Munsiff shall consider whether objection raised by petitioner is justified and pass appropriate orders in the matter. THOMAS P. JOSEPH, JUDGE. vsv