IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 5149 of 2009(O) ------------------------- OS.151/2005 of PRL.SUB COURT,IRINJALAKKUDA .................... PETITIONER(S): - --------------- GOVINDANKUTTY MENON, AGED 58, S/O. VAZHAPPILLY LAKSHMI AMMA, CHEMBUCHIRA DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) SMT.PREETHY KARUNAKARAN RESPONDENT(S): --------------- 1. PRABHAKARAN NAIR, S/O. PERUMBILLY MADHAVI AMMA, CHEMBUCHIRA DESOM, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK. 2. AMMINI AMMA @ KUCHUKUTTY AMMA, W/O. PRABHAKARAN NAIR, CHEMBUCHIRA DESOM, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK. 3. VENU, S/O. RAMACHANDRAN NAIR, CHAZHIKAD KUNDOOR DESOM, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 5149 OF 2009 =========================== Dated this the 18th day of February,2009 JUDGMENT Petitioner is the first plaintiff in O.S.151/2005 on the file of Prl. Sub Court, Irinjalakuda. Respondents 1 and 2 are the defendants and third respondent, the second plaintiff. The suit was filed for a declaration that the property covered by registered document 3211/1980 is in survey No.725/4 and not in Sy.No.725/3 and the survey number mentioned as 725/3 in the document is a mistake and for a permanent prohibitory injunction restraining respondents 1 and 2 from trespassing into the said property. A Commission was appointed to identify the said property and to prepare a plan. Commissioner submitted Ext.P3 report and plan identifying the property covered by the document relied on W.P.(C)5149/2009 2 by the plaintiffs as in survey No.725/3 instead of survey No.725/4 as claimed by the plaintiffs. I.A.2525/2008 is thereafter filed by the petitioner to remit the report back to the Commissioner. In Ext.P5 application petitioner sought a direction from the court to the Commissioner to identify the way shown as the eastern boundary of the property covered by document No.3211/1980 evidently to fix the 29 cents covered by document to the west of that eastern way. Under Ext.P6 order, the petition was dismissed by the learned Sub Judge. This petition is filed under Article 227 of the Constitution of India challenging that order. 2. Learned counsel appearing for the petitioner was heard. 3. In view of the order to be passed in this petition, I do not find it necessary to issue notice to respondents and protract the trial. 4. It is the very case of the plaintiffs that survey number shown in document No.3211 of 1980 and W.P.(C)5149/2009 3 the prior documents is a mistake and survey number should be 725/4 and not 725/3. If the property is in survey number 725/3, the plaintiffs can only be non-suited. The description of the property in document No.3211/1980 as well as the prior document show that the said 29 cents lies to the west of the eastern way as eastern boundary is shown as the way. It is the case of the plaintiffs that the property can be fixed only with reference to the said eastern boundary and as there is no way to the east of survey number 725/3 as identified the property cannot be in Sy. No.725/3 but Sy.No. 725/4. The Commissioner in paragraph 2 of Ext.P3 report found that there is no way on the eastern boundary of survey No.725/3 which is identified by the Commissioner as the property covered by the document. It is for that reason petitioner sought remission of the report. I do not find any justification for the court to deny the opportunity to have a proper identification of the property. W.P.(C)5149/2009 4 The learned Sub Judge should have remitted the report to the Commissioner atleast to the limited extent of directing the Commissioner to find out whether there is a way to the east of the property in survey number 725/4 and if so whether the said property would be the property covered by document No.3211/1980. The question whether the property covered by the document is the property in survey No.725/4 or 725/3 is to be decided by the Sub Judge on the entire relevant facts and evidence on record and not based on the eastern boundary alone. Writ Petition is disposed of. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006