IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 WP(C).No. 33371 of 2008(W) -------------------------- OS.234/2008 of PRL.M.C.,ERNAKULAM .................... PETITIONER(S): ------------------------- 1. K.M.MATHEW, S/O.LATE MIKHAEL, KANNAEMPILLY HOUSE, THUTHIYOOR KARA, VAZHAKKALA VILLAGE, CSEZ P.O.,COCHIN 682 037. 2. BIJU MICHEAL, S/O,.LATE MIKHAEL, KANNAEMPILLY HOUSE, THUTHIYOOR KARA, VAZHAKKALA VILLAGE, CSEZ P.O.,COCHIN 682 037. BY ADVS. MR.DINESH R.SHENOY, MR.V.V.UNNIKRISHNAN. RESPONDENT(S): ---------------------------- 1. MADUKKAKUZHI FINANCE, A PARTNERSHIP CONCERN, REP. BY ITS MANAGING PARTNER, CHACKO, S/O.JOSPH,MADAKKAKUSHI HOUSE, NJALAKAM KARA, THRIKKAKARA VILLAGE. 2. CHACKO, S/O.JOSEPH MADAKKAKUSHI HOUSE, NJALAKAM KARA, THRIKKAKARA VILLAGE. R1 & R2 BY ADVS. MR.N.SUBRAMANIAM, MR.M.S.NARAYANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33371/2008 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT FILED IN O.S.NO.234/2006 MUNSIFF COURT,ERNAKULAM. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS/ DEFENDANTS IN O.S.NO.234/2006 BEFORE THE MUNSIFF COURT, ERNAKULAM. P3: COPY OF I.A.NO.1790/2006 IN O.S.NO.234/2006 MUNSIFF COURT,ERNAKULAM. P4: COPY OF THE COMMISSION REPORT DTD. 8/2/2008 IN I.A.NO.1790/2006 IN O.S.NO.234/2006 MUNSIFF COURT, ERNAKULAM. P5: COPY OF THE OBJECTION FILED BY THE PETITIONERS TO THE REPORT OF THE ADVOCATE COMMISSIONER DTD. 25/02/2008 IN I.A.NO.1790/2006 IN O.S.NO.234/2006 MUNSIFF COURT, ERNAKULAM. P6: COPY OF THE OBJECTION FILED BY THE RESPONDENT DTD.26/2/2008 IN I,A,NO.1790/2006 IN O.S.NO.234/2006 MUNSIFF COURT,ERNAKULAM. P7: COPY OF I.A.NO.5326/2008 IN O.S.NO.234/2006 MUNSIFF COURT. P8: COPY OF THE ORDER DTD. 21/08/2008 INI.A.NO.2127/2008 IN O.S.NO. 234/2006 MUNSIFF COURT, ERNAKULAM. P9: COPY OF I.A.NO.7270/2008 IN O.S.NO.234/2006, MUNSIFF COURT, ERNAKULAM. P10: COPY OF I.A.NO.7269/2008 INO.S.NO.234/2006, MUNSIFF COURT, ERNAKULAM. P11: COPY OF I.A.NO.7270/2008 IN O.S.NO.234/2006, MUNSIFF COURT, ERNAKULAM. P12: COPY OF ORDER DTD. 14/10/2008 IN I.A.NO.7269/2008 IN O.S.NO.234/2006 MUNSIFF COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.33371 of 2008 - W --------------------------------- Dated this the 14th day of September, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari quashing or setting aside Exhibit P12 order dated 14.10.2008 passed by the Principal Munsiff Court, Ernakulam. ii) To issue a direction to the Munsiff Court, Ernakulam to direct the Advocate Commissioner to identify the property covered by the delivery report in E.A.No.885 of 1982 in O.S.No.209 of 1980 of Sub Court, Ernakulam and the plaint schedule property on the basis of old survey records.” 2. Petitioners are the plaintiffs in O.S.No.234 of 2008 on the file of the Principal Munsiff Court, Ernakulam. Suit is one for fixation of boundary, injunction and other reliefs, and the respondents are the defendants. On the application moved by the plaintiff, an advocate commissioner was appointed to conduct local inspection to measure out the property and prepare a report and plan with the assistance of a surveyor. The plaintiff had applied for measuring of the property with reference to the purchase certificate under which he claimed right and possession over the plaint W.P.(C).No.33371 of 2008 - W 2 property and also as per the survey records. At the time when the commissioner conducted local inspection it was found that the purchase certificate produced by the plaintiff was not sufficient to identify the property and hence with reference to the decree passed in a previous suit by which the defendant got delivery of the property the advocate commissioner proceeded with measuring and identification of the plaint property. The report and plan submitted by the commissioner was objected to by both sides. The learned Munsiff after hearing both sides, negatived the objections raised to the commission report and plan but reserved its consideration at trial if materials are tendered to show that the report is not acceptable. Pursuant thereto, plaintiff moved an application directing the defendants to produce the delivery kaicheettu under which they claimed title and possession over the property which according to them covered portions of the plaint property as well. The defendants filed objections contending that the delivery kaicheettu is not traceable. Thereupon after applying for production of the delivery kaicheettu from the concerned court and that course having been found not feasible since the original document was reported as not available the plaintiff produced a copy of the W.P.(C).No.33371 of 2008 - W 3 delivery kaicheettu seeking for its admission in the place of the original. Court below allowed that application. The previous order passed by the court below with reference to the commission report and plan(Ext.P8) was then sought to be reviewed, for measuring and identification of the suit property with reference to the photocopy of the delivery kaicheettu produced. The learned Munsiff after hearing the counsel on both sides turned down the request made by the plaintiff vide Ext.P12 order. Propriety and correctness of ext.P12 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. After having heard the counsel at length, I find both in Exts.P8 and P12 orders, the court has abundantly made clear that at the stage of trial if it is found that the objections raised to the commission report are having merit, appropriate orders will be passed for remitting the report to have further measurement for identification of the property. In Ext.P8 order, the court has held that during the evidence if sufficient materials are produced to identify the property, necessary orders will be passed. Similarly W.P.(C).No.33371 of 2008 - W 4 while disposing of review petition moved by the plaintiff vide Ext.P12 order also the court has held at present there are no sufficient materials to set aside the commission report and if during trial it is found that commission report has to be set aside it will be considered. So at present the application filed by the plaintiff to set aside the report solely on the basis of the delivery kaicheettu to have further measurement to identify the suit property cannot be allowed at this stage. The preliminary question that emerges for consideration is whether by virtue of the report and plan already obtained, the suit property is identifiable or not. If not, necessarily, appropriate orders have to be passed by the court and that has been reserved in Exts.P8 and P12 orders as well. So much so, at the stage of trial, it is open to the petitioner/plaintiff to substantiate his objections to the commission report and plan prepared over the suit property, and no interference with Exts.P8 and P12 orders is warranted at this stage. The writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-