IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 6322 of 2009(O) I.A.NO.1009/2008 IN OS.360/2006 DATED 21.1.2009 OF THE MUNSIFF COURT, CHANGANACHERRY PETITIONER: --------------- ALEYAMMA VARGHESE, W/O.VARGHESE, KOODATHINKAL HOUSE, KANICHUKULAM BHAGOM, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK. BY ADV. SRI.A.K.HARIDAS RESPONDENTS: --------------- 1. ANTONY, S/O.ANTONY, THOOMPUNKAL HOUSE, KANICHUKULAM BHAGOM, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK. 2. THOMAS, S/O.JOSEPH,KARACKATTU HOUSE, KOCHUROAD BHAGOM, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK. 3. MATHEW, S/O.JOSEPH, KARACKATTU HOUSE, KOCHUROAD BHAGOM, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 6322 OF 2009 O ------------------------------------------------------ Dated this the 26th February, 2009 JUDGMENT The plaintiff in O.S.No.360 of 2006, on the file of the Munsiff's Court, Changanacherry, challenges Ext.P8 order in I.A.No.1009 of 2008, by which the court below rejected the prayer made by the plaintiff to set aside the report and plan submitted by the Commissioner. The suit was filed for declaration of easement right and for mandatory and prohibitory injunction. A Commissioner was appointed. The Commissioner inspected the property with the assistance of Taluk Surveyor and filed a report and plan. The petitioner filed objections. He filed an application to set aside the Commissioner's report and plan. The Commissioner as well as the Surveyor were examined as PW1 and PW2. The court below considered each and every objection raised by the petitioner to the Commissioner's report and dealt with the same in the detailed order passed by it. The court below held that the evidence of the Commissioner and Surveyor would indicate that the plan and report submitted in the case were properly prepared after taking note of the relevant facts. In respect of some of the objections, the court below found that they are without substance. W.P.(C) NO. 6322 OF 2009 :: 2 :: 2. Even if the application filed by one of the parties for setting aside the Commissioner's report and plan was dismissed, that does not preclude the Court from considering whether the report and plan are correct at the final trial and disposal of the case. In Kanaran Nair v. Madhavan Nair (1996 (1) KLT 162), a Division Bench of this Court held that an order passed declining to set aside the report of the Commissioner is only interlocutory in nature and nothing contained in it would trammel the trial court from taking a different view, if otherwise satisfied at a subsequent stage. It was also held that the parties are entitled to use other evidence including materials elicited through examination of the Commissioner as a witness for satisfying the Court that findings in the report are faulty. Even though the Commissioner and Surveyor were examined and the court below found that the report and plan are not liable to be set aside, that does not mean that the Court cannot take a different view after the other witnesses are examined. The petitioner would be entitled to submit that a fresh look is necessary on the basis of the materials produced at the time of trial. The observations and findings in the order impugned shall not stand in the way of the court below in considering the objections to the Commissioner's report and plan submitted by the petitioner at the time of trial. There is no ground to entertain the Writ Petition challenging the well considered order passed by the court below. The court below has given cogent reasons for arriving at W.P.(C) NO. 6322 OF 2009 :: 3 :: the conclusion. It cannot be said that the order suffers from any infirmity or lack of jurisdiction. The Writ Petition is accordingly dismissed, however, with the above observations. (K.T.SANKARAN) Judge ahz/