IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 35736 of 2008(D) -------------------------------------------- OS.319/2008 of PRL.M.C., NEYYATTINKARA .................... PETITIONER: CHANDRAN NADAR, KANJIRAMNINNA VILA VEEDU, BHASKAR NAGAR,VANPAKAL P.O., NEYYATTINKARA. BY ADV. SRI.R.GOPAN RESPONDENT: MARY STELLA, STELLA VILLA, PALKULANGARA P.O., THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.35736 of 2008 D -------------------------- JUDGMENT Petitioner is the second plaintiff in O.S.No. 319/08 on the file of the Munsiff's Court, Neyyattinkara. The suit is one for declaration of title and possession and for permanent prohibitory injunction as also for putting up of boundary on the northern and southern sides of plaint schedule property having an extent of six cents. 2. It is submitted that the respondent/ defendant is the adjacent property owner. According to the petitioner, he contended in the plaint that the scheduled property is the family semitry and there are five tombs of plaintiffs' ancestors, which was disputed by the respondent in the written statement and therefore, the petitioner filed I.A.No.3812/08 for appointing an Advocate Commissioner and Forensic expert for ascertaining the above details and the respondent also filed WPC 35736/08 2 I.A.No.5842/08 for locating their property on the basis of the sale deed and partition deed and that the learned Munsiff, vide Exhibit P12 common order, allowed both the applications, except the prayer of the petitioner for ascertaining the existence of tombs and its biology by deputing also a Forensic expert. Petitioner, therefore, prays for an order quashing Exhibit P12 common order and for a direction being issued to allow Exhibit P10 application (I.A.No.3812/08) as prayed for and also for a direction being given to the learned Munsiff to dispose of I.A.No.2923/08 filed by the first plaintiff in the suit, who is petitioner's mother. Exhibit P12 common order passed by the court below, while allowing issuance of commission, observed that the Commissioner can ascertain the existence of tombs, but, however, there is no need to break open the tombs and have it examined by a scientific expert and hence disallowed the prayer to depute a Forensic expert for the purpose. Thus, the order WPC 35736/08 3 of the court below enabled the existence of tombs and number of tombs to be ascertained by the Advocate Commissioner, but it only refused to depute a forensic expert to break open the tombs and to examine the mortal remains, if any, of persons alleged to have been cremated. There is absolutely no need to break open the tombs, if any. Petitioner will have to prove his case by adducing evidence and the evidence in the nature of collecting such biological details cannot be had by deputing any Forensic expert as prayed for. Exhibit P12 common order passed by the learned Munsiff cannot be faulted, in the circumstances. 3. No direction requires to be made to the learned Munsiff in the matter of disposal of I.A. No.2923/08 filed by the first plaintiff in this writ petition filed by the second plaintiff, as counsel submits that the prayer in that application is to cremate her (the first plaintiff) very close to the place where her husband was cremated. There WPC 35736/08 4 is no emergency in passing any order on that application, except it be for protracting the litigation. There is no merit in this writ petition. The writ petition is, hence, dismissed. 3rd November, 2008 (K.P.Balachandran, Judge) tkv