IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 29970 of 2009(O) -------------------------- AGAINST THE ORDER DATED / / IN OS.884,297/2007 IN OS.402/2005 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER(S): ---------------------- 1. CHAKKU, S/O. PUTHOOR OUSEPH, KOLAZHI VILLAGE, THIROOR DESOM, THRISSUR TALUK & DISTRICT. 2. DEVASSY, S/O. PUTHOOR OUSEPH, KOLAZHI VILLAGE, THIROOR DESOM, THRISSUR TALUK & DISTRICT. 3. FRANCIS, S/O. PUTHOOR VAREED, KOLAZHI DESOM, THIROOR DESOM, THRISSUR TALUK, DISTRICT. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): ------------------------ 1. ST. THOMAS CHURCH, KOLAZHI VILLAGE, THIROOR DESOM, THRISSUR TALUK, REP. BY PRESENT VIKARI JOSEPH CHAZHUR. 2. ST. THOMAS CHURCH, KOLAZHI VILLAGE, THIROOR DESOM, THRISSUR TALUK, REP. BY PRESENT KAIKKARAN, GEORGE, S/O. MUTTIKKAL LUKOSE, DO 3. ST. THOMAS CHURCH, KOLAZHI VILLAGE, THIROOR DESOM, THRISSUR TALUK, REP. BY PRESENT KAIKKARAN XAVIER, S/O. CHITTILAPPILLY VEETTIL KOCHU MATHEW, PUTHANMADAM DESOM, KOLAZHI VILLAGE. 4. CHAKKU, S/O. OUSEPH @ KOCHAPPU NEELANKAVIL HOUSE, THIRUR DESOM, KILLANNOOR VILLAGE, THRISSUR. WP(C).No. 29970 of 2009(O) -2- 5. THOMAS, S/O. OUSEPH @ KOCHAPPU, NEELANKAVIL HOUSE, THIRUR DESOM, KILLANNOOR VILLAGE, THRISSUR. 6. DAVIS, S/O. VADAKKAN OUSEPH, THIRUR DESOM, KILLANNOOR VILLAGE, THRISSUR TALUK. 7. MICHAEL, S/O. MARY, NEELANKAVIL HOUSE, THIRUR DESOM, KILLANNOOR VILLAGE, THRISSUR TALUK. 8. ROSAKUTTY, D/O. MARY, NEELANKAVIL HOUSE, THIRUR DESOM, KILLANNOOR VILLAGE, THRISSUR TALUK. 9. ELSY, D/O. MARY, NEELANKAVIL HOUSE, THIRUR DESOM, KILLANNOOR VILLAGE, THRISSUR TALUK. 10. THARU, S/O. OUSEPH @ KOCHAPPU, NEELANKAVIL HOUSE, THIRUR DESOM, KILLANNOOR VILLAGE, THRISSUR. 11. LONAPPAN S/O. OUSEPH @ KOCHAPPU, NEELANKAVIL HOUSE, THIRUR DESOM, KILLANNOOR VILLAGE, THRISSUR. 12. FRANCIS S/O. OUSEPH @ KOCHAPPU, NEELANKAVIL HOUSE, THIRUR DESOM, KILLANNOOR VILLAGE, THRISSUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.29970 of 2009 - O --------------------------------- Dated this the 22nd day of October, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To set aside Exhibit P15 order passed by Principal Munsiff, Thrissur in I.A.No.3537/2009 in O.S.No.4021/2005 dated 22.9.2009.” 2. Petitioners are the plaintiffs in O.S.No.4021 of 2005 before the Principal Munsiff Court, Thrissur. Suit is one for perpetual prohibitory injunction. The above suit is tried with two other suits, O.S.No.297 of 2007 and O.S.No.884 of 2007. The dispute raised in the suit related to a pathway allegedly situate in a puramboke land which is disputed by the respondents 1 to 3 contending that over 14 cents of land the first respondent church has got absolute title and possession. Respondents 1 to 3 have filed the suit O.S.No.884 of 2007 seeking fixation of boundary of the property claimed by them, scheduled in the plaint, and for decree of injunction against the defendants in that suit. Before the suits were ordered to be jointly tried, petitioners/plaintiffs in their suit (O.S.No.4021 of 2005) had applied for an advocate commissioner and that being allowed the commissioner after conducting local inspection with the assistance of a surveyor had W.P.(C).No.29970 of 2009 - O 2 prepared a report and plan. After the suits were ordered to be tried jointly the plaintiffs in O.S.No.884 of 2007 respondents 1 to 3 herein moved an application for appointment of a commission for ascertaining certain points canvassed in their petition. That application being allowed, the commissioner appointed, after conducting local inspection with the assistance of a private surveyor, filed another report before the court. At that stage, petitioners filed Ext.P11 application submitting that the entire properties covered in the three suits have to be measured out and that the surveyor assisting the commissioner appointed by the court in O.S.No.884 of 2007 filed by the respondents 1 to 3 has expressed some views against the report and plan prepared earlier indicating that he is proceeding with the matter in a prejudicial manner. Petitioner, therefore, sought for appointment of taluk surveyor to assist the commissioner in carrying out measurement. The application moved by the petitioners/plaintiffs in O.S.No.4021 of 2005 was objected to by the respondents 1 to 3/plaintiffs in O.S.No.884 of 2007. Learned Munsiff, after hearing both sides, declining the request of the petitioners held that the reliefs claimed thereunder are premature. Ext.P15 is the copy of that order. Propriety and correctness of Ext.P15 order is W.P.(C).No.29970 of 2009 - O 3 challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. Having regard to the submission made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. 4. Appointment of a commission on the application moved by the respondents 1 to 3/plaintiffs in O.S.No.884 of 2007 was without notice to the present petitioners though all the three cases had been ordered to be tried jointly, is the submission of the counsel to contend that they did not get any opportunity of raise their objections at the time the commission application was considered and disposed by the court. In case the entire property covering all the three suits is not measured out, according to the learned counsel for the petitioners, in the backdrop there is already a report prepared by the the advocate commissioner in their suit there is every chance of having conflicting in reports, and it may delay and protract the trial of the suits. In the nature of the disputes arising for adjudication in all the three suits measurement of the properties scheduled in all W.P.(C).No.29970 of 2009 - O 4 the three suits by a common commissioner with the assistance of a taluk surveyor is essential, and as the private surveyor assisted in the second commission has expressed some views that he would ignore the previous report in the interest of justice the court below has to be directed to appoint a taluk surveyor in the place of the present surveyor to assist the commissioner is the further submission of the counsel. Ext.P11 is the application filed by the petitioner objecting to the interim report filed by the advocate commissioner appointed in the suit filed by respondents 1 to 3. So far as the objection canvassed that petitioners have not been given notice when the application for commission was moved there is no such allegation in Ext.P11 application. That being so, that attack canvassed to challenge the order has only to be noted for its rejection. Perusing Ext.P15 order, it is seen, none of the objections raised by the petitioners has been turned down, but, only relegated for consideration after filing of the final report by the commissioner. The court below has expressed the view that the objections canvassed at present are premature. With respect to the allegations raised against the private surveyor who assisted the commissioner the court below has expressed the view that such allegations remained W.P.(C).No.29970 of 2009 - O 5 unsubstantiated with any material whatsoever. The court below has found credence in the objections raised by the respondents 1 to 3 that the execution of the commission work was obstructed to by the present petitioners/plaintiffs in O.S.No.4021 of 2007. When such be the case, I find it is not proper and appropriate for this Court to interfere with Ext.P15 order passed by the learned Munsiff, which on the face of it does not indicate that it suffers from any jurisdictional infirmity. It is open to the petitioner to move before the court an application with a work memo for determination by the commissioner appointed any additional points to be considered, in view of the joint trial of the three suits. If any any such application is filed within three weeks from the date of this judgment the court below has to consider and pass appropriate orders thereof. Subject to the above observation, writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-