IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 WP(C).No. 2886 of 2010(O) --------------------------------- AGAINST THE ORDER DATED 01/10/2009 IN IA.3245/2009 IN OS.257/2007 of MUNSIFF COURT, THALIPARAMBA .................... PETITIONER(S): ------------------------ 1. KALLATT THAZHATH VEETTIL RAMAKRISHNAN NAMBIAR, AGED 75 YEARS, S/O.KUNHANANTHAN NAMBIAR, RETIRED VILLAGE OFFICER, RESIDING AT 'SWAPNA', JAYJAVAN ROAD, PALLIKKUNNU AMSOM DESOM, KANNUR TALUK. 2. THINAKKAN REMA AMMA, AGED 57 YEARS, W/O.RAMAKRISHNAN NAMBIAR, DO. DO. 3. JAYAKRISHNAN, AGED 34 YEARS, S/O.RAMAKRISHNAN NAMBIAR, DO. DO. BY ADV. MR.BLAZE K.JOSE RESPONDENT(S): ------------------------- KOORAN EDAYILE PURAYIL MOIDU HAJI, AGED 66 YEARS, S/O.MUHAMMED, PATTANNUR AMSOM, KOLAPPA DESOM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.2886/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. NO.257/2007. P2:- COPY OF THE WRITTEN STATEMENT IN OS. 257/2007. P3:- COPY OF THE COMMISSIONER REPORT DTD. 10.12.2008 IN OS. 257/2007. P4:- COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER TO REMIT THE COMMISSIONERS REPORT AS IA. 3245/09 IN OS. 257/2007. P5:- COPY OF THE ORDER IN IA. 3245/09 IN OS. NO.257/07 OF THE MUNSIFF'S COURT, TALIPARAMBA DTD. 1.10.09. TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J --------------------------- W.P.C.No.2886 OF 2010 --------------------------------------------- Dated this the 15th day of March, 2010 J U D G M E N T Aggrieved by Ext.P5 order dated 1.10.2009 whereby the prayer for remitting commissioner report has been dismissed by the court below, the petitioner has come up in appeal before this court. 2. The petitioners are defendants 1, 2 and 3 in O.S.257/07 pending before the Munsiff's Court, Thaliparamba. The relief sought for n the suit reads as follows: “Restraining the defendants and their men from trespassing into the plaint schedule property, removing the existing boundaries and/or constructing new boundaries encroaching into the plaint schedule property, committing any waste or damage in the property and from alienating the Plaint schedule property or any part thereof and from making any obstruction to the Plaintiff in possessing and enjoying the plaint schedule property and in constructing boundary on west WPC.2886/10 2 of the 1st item of the plaint schedule property. 3. The defendant entered appearance in the suit and filed a written statement. A Commissioner was appointed and he visited the property. The Commissioner filed a report and sketch. The defendants submitted that the report of the commissioner does not cover land comprised in re-survey No.13. It will not be helpful in resolving the issue involved in the suit. 4. According to the defendants the suit is for laying boundary. They therefore filed I.A.3245/09 for remitting the commissioner's report and to call for a fresh report after measuring the property with the help of Taluk Surveyor. The court below dismissed the petition. 5. The learned counsel appearing for the petitioner emphasised on the prayer in the plaint which has already been extracted. It is submitted by the learned counsel that WPC.2886/10 3 it is not a suit for injunction but in fact laying the boundary. Attention of this court was drawn to the Commissioner's report, which appears to be very wonderful under the said circumstance. The court below was not justified in dismissing the petition. 6. Though notice was was served on the respondent he has not entered appearance before this court. 7. As rightly pointed out by the learned counsel for the petitioner, on going through the plaint, it does not appear to be a simple suit for injunction. Further reliefs are also sought for. It would not be correct to say that a proper sketch and plan and report after measuring the property with the assistance of Taluk Surveyor is not necessary, considering the nature of the suit. On going through the plaint, it appears that the prayer made by the petitioner in the interlocutory application before the court below is just and reasonable. There was no justifiable reason to decline WPC.2886/10 4 the relief sought for by the petitioner. 8. In the result, this petition is allowed. Impugned order is set aside and the court below is directed to remit commission report to the same commission and call for a further report and plans as prayed for by the petitioner. P. BHAVADASAN, JUDGE. Sou.