IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).NO. 21422 OF 2010(O) ----------------------------------------- OS.91/2004 OF MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): ----------------------- KATTUR MUNDAYADAN BALAKRISHNAN NAMBIAR, AGED 83 YEARS, S/O.PARVATHI AMMA,ATHIYADAM, CHERTHAZAHAM AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER SRI.LIJO KURIAN JOSE RESPONDENT(S): -------------------------- 1. KEEPPALLI DAMODARAN, S/O.GOVINDAN, ATHIYADAM, CHERUTHAZHAM AMSOM DESOM SREESTHA, PAYANGADI P.O.,KANNUR DISTRICT. 2. KATTUR MUNDAYADAN JANAKI AMMA, ATHIYADAM CHERUTHAZHAM AMSOM DESOM, PAYANGADI P.O., KANNUR DISTRICT. 3. VAYALILEPURAYIL KAMALAKSHI, W/O.KODAKKARAN KUNHI KANNAN, VEERANCHRA,P.O.SREESTHA, PAYANGADI (VIA) KANNUR DISTRICT. 4. VENGARA KIZHAKKEVEETTIL RAMAN, ATHIYADAM,PAYANGADI P.O.,KANNUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21422 of 2010 ==================================== Dated this the 09th day of July, 2010 J U D G M E N T Defendant No.2 in O.S. No.91 of 2004 of the court of learned Munsiff, Payyannur is the Writ Petitioner, challenging Ext.P13, order whereby learned Munsiff refused to remit Exts.P4 and P5, report and plan prepared by the Advocate Commissioner. The suit is for fixation of boundary of suit property and other reliefs. Petitioner claimed that he owns 37 cents of land on western side of the suit property as per document of title referred to in the written statement. Advocate Commissioner inspected the property with assistance of Taluk Surveyor and submitted Exts.P4 and P5. Petitioner preferred objection to the said report and plan and Ext.P6, application to remit the same. Petitioner contended that report and plan are unacceptable and that there is no proper measurement of the property. Property belonging to the petitioner was not measured with reference to his documents of title. Advocate Commissioner has committed grave mistakes in preparing the report and plan. Learned Munsiff observed that going by the objection there is no serious objection to Exts.P4 and W.P(C) No.21422 of 2010 -: 2 :- P5. It is also observed in paragraph 7 of Ext.P13, order that Commissioner has measured the property on five occasions with the assistance of Taluk Surveyor and that was done in the presence of both parties and their counsel. It is also stated that property has been identified as per measurement and all relevant facts are reported. Learned Munsiff is of the view that objection raised by petitioner are matters which could be clarified by the evidence of Advocate Commissioner. Holding so Ext.P6, application was dismissed. Learned counsel contended that Exts.P4 and P5 are not sufficient to decide the real controversy and it causes prejudice to the petitioner in that property belonging to him was not measured with reference to his title deeds. 2. Sarojini v. Karthiyani Amma (2010[1] KLT SN 17 [Case No.19]) states under which all circumstances this Court should interfere under Article 227 of the Constitution of India with the report and plan submitted by the Advocate Commissioner and order passed by the trial court as to its acceptance or otherwise. It is stated that except when it is shown that order passed suffered from such infirmity which if not corrected would result in grave injustice this Court is not justified in interfering under Article 227 of the Constitution of India. Question is whether interference W.P(C) No.21422 of 2010 -: 3 :- in the circumstances stated is warranted against Ext.P13, order. Learned counsel for petitioner has referred me to the objection preferred by petitioner to buttress his contention that objection are not simple but are serious in nature. Assuming so, it is not as if right of petitioner to challenge Exts.P4 and P5 has been foreclosed for ever. Learned Munsiff has observed that property has been properly identified. Certainly that observation is for the purpose of disposing of Ext.P6, application as is clear from the fact that learned Munsiff has observed in the impugned order that petitioner has opportunity to examine the Advocate Commissioner during trial of the suit. Certainly that examination is intended to bring out infirmities petitioner alleges in Exts.P4 and P5. There is no reason to think that if such infirmities are brought out learned Munsiff will not consider the same. I must bear in mind that this is not a case where petitioner is seeking relief in the suit except a dismissal of the suit which is for fixation of boundary. Having regard to the circumstances and considering the opportunity learned Munsiff has given to the petitioner I am not satisfied that order under challenge would result in grave injustice to the petitioner as things stand now. As such interference with the said order is not warranted. W.P(C) No.21422 of 2010 -: 4 :- Resultantly, subject to the observation made by the learned Munsiff as to the right of petitioner to examine the Advocate Commissioner and bring out the infirmities he has alleged in Exts.P4 and P5, this Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv