IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(C).No.34945 of 2008 (I) --------------------------------- OS.849/2006 of PRL.M.C.,TRIVANDRUM .................... PETITIONER: --------------- V.R.SAJI MON, PRAVITHANATTNTHU VANATTUMATTATHU VEEDU, ALANATTUKARA, BHARANANGANAM VILLAGE, MEENACHAL TALUK, KOTTAYAM. BY ADV. SRI.J.HARIKUMAR SRI.HARIKUMAR.S. RESPONDENT: ---------------- M.KARUNAKARAN, CHAMBAKASSERI, SIVODAYAM ROAD, UPANIYOOR, VELLAYANI, THIRUVANANTHAPURAM. ADV. SRI.V.SURESH FOR R1 SRI.G.SUDHEER FOR R1 SRI.S.BALACHANDRAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.34945 of 2008 (I) APPENDIX PETITIONER'S EXTS: EXT.P1:- TRUE COPY OF THE PLAINT IN O.S. NO.849/06 BEFORE THE PRL. M.C., THIRUVANANTHAPURAM. EXT.P2:- TRUE COPY OF THE TAX RECEIPT DT.08/06/06 ISSUED FROM KALLIYOOR VILLAGE OFFICE. EXT.P3:- TRUE COPY OF THE FINAL DECREE DT.19/01/98 IN O.S.469/1985 OF THE PRL. M.C., THIRUVANANTHAPURAM. EXT.P4:- TRUE COPY OF THE COMMISSION REPORT ALONG WITH PLAN DT.18/06/08 IN O.S. NO.849/06 BEFORE THE PRL. MC., THIRUVANANTHAPURAM. EXT.P5:- TRUE COPY OF ORDER DT.06/08/08 IN O.S. NO.849/06 OF THE PRL. M.C., THIRUVANANTHAPURAM. .................. K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34945 OF 2008 ------------------------------------------------ Dated this the 2nd day of February, 2009 JUDGMENT The only contention that is advanced before me by the counsel for the petitioner/ plaintiff in O.S.849/06 assailing Ext.P5 is that in Ext.P5, the court below has observed that the contention of the defendant is that as per Exts.B1 and B2 sale deeds he got five cents of property from Thankappan Pillai, but that in an earlier suit it was held that Ext.B2 sale deed has not come into force and that thereunder the defendant did not obtain any right and that as per Ext.P3 decree it was found that the defendant is having only 2.9 cents as per Ext.B1 and that the direction of the court below therefore, that the defendant has got five cents of property as per Exts.B1 and B2 and the said five cents has to be got W. P. C. No.34945 OF 2008 -2- measured and then only boundary can be put up is incorrect and that the commission ordered to be issued as per Ext.P5 order has therefore, to be set aside. 2. Counsel for the respondent is unable to answer when asked as to whether there is such a finding in Ext.P3 decree that the defendant has title only to 2.90 cents of land as per Exts.B1 and that he has not acquired any title as per Ext.B2 document. In the circumstances, I set aside Ext.P5 and remit the matter back to the court below. The court below shall consider the said contention and pass appropriate orders after considering with reference to Ext.P3 decree as to whether a commission has to be issued to locate five cents of property covered by Exts.B1 and B2. W. P. C. No.34945 OF 2008 -3- 3. This Writ Petition is allowed and is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-