IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 7085 of 2009(O) ------------------------- OS.343/2003 ON THE FILE OF MUNSIFF COURT, PALAKKAD .................... PETITIONER(S): --------------- CHENTHAMARA, S/O.KAMBI, PATHIYIL PADAM, KOZHIPARAMBU, KODUMBU VILLAGE, OLASSERY AMSOM & DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT(S): --------------- 1. MADHAVAN, S/O.KAMBI, PATHIYIL PADAM, KOZHIPARAMBU, KODUMBU VILLAGE, OLASSERY AMSOM & DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT. 2. PRABHAKARAN, S/O.LATE GOPALAN, PATHIYIL PADAM, KOZHIPARAMBU, KODUMBU VILLAGE, OLASSERY AMSOM & DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT. 3. RADHAKRISHNAN, S/O.LATE SUKUMARAN, PATHIYIL PADAM, KOZHIPARAMBU, KODUMBU VILLAGE, OLASSERY AMSOM & DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT. ADV. SRI.K.RAMESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- W.P.(C).No.7085 of 2009 ----------------------------------- Dated this the 31st day of March, 2009 JUDGMENT The Writ Petitioner filed O.S.No.343 of 2003, on the file of the court of the Munsiff of Palakkad, for permanent prohibitory injunction as well as mandatory injunction. According to the plaintiff, the plaint 'C' schedule varamba was widened by the defendants encroaching upon the plaint schedule property. The property belongs to the plaintiff. A Commissioner was appointed to identify the disputed properties. He filed report on 15.10.2004. On the application filed by the petitioner, the Commissioner inspected the property again. Again, the report was remitted and a report was thereafter submitted. The petitioner has filed I.A.No.1581 of 2008 to remit the Commissioner's report again. The court below by the order dated 13th January 2009 dismissed the application. 2. According to the petitioner, inspection of the property in accordance with his title deed, which is a Will, is to be made WPC No.7085/2009 2 and then only it can be found out whether the plaint 'C' schedule pathway was widened after encroaching upon the property. According to the petitioner, the Commissioner has done the work only in accordance with the re-survey records and that no attempt was made to measure out the property in accordance with measurements and other details in the title deed. This objection made by the petitioner was turned down by the court below stating that the Commissioner has noted the nature of the pathway on the date of his first inspection and the contention of the petitioner can be established by other evidence. The court below did not say that inspection of the property in accordance with the title deed is absolutely irrelevant. But, it was thought that at this distance of time, remitting the Commissioner's report would not be necessary. 3. The learned counsel appearing for the first respondent, on instruction, submits that the first respondent has no objection in remitting the Commissioner's report. His anxiety is only that under the pretext of getting a further report, the petitioner is trying to protract the litigation. The counsel submitted that even WPC No.7085/2009 3 if the report is to be remitted, a time limit may be fixed for submitting the report by the Commissioner. In the facts and circumstances of the case and particularly in view of the submission made by the learned counsel for the first respondent, I am of the view that the Commissioner's report can be remitted to the same Commissioner for inspection of the property in accordance with the title deed as mentioned in Ext.P8 application. No prejudice would be caused to the respondents by such an inspection except that there would occur some delay. But, in the larger interests of all the parties concerned, it would be ideal if all the relevant details are made available before court. If such a report is filed, probably the volume of evidence also could be reduced. Accordingly, Ext.P10 order dated 13.1.2009 in I.A.No.1581 of 2008 passed by the court below is set aside. Though I am of the view that the reasonings made by the court below are sustainable in general, Ext.P10 is being set aside in the peculiar facts of the case and in view of the submission made by the first respondent. The court below shall appoint the same Commissioner. The Commissioner shall file the WPC No.7085/2009 4 report within a period of three months. The court below shall appoint the Commissioner before the court closes for summer holidays, so that the Commissioner can inspect the property during holidays. The Writ Petition is allowed as above. K.T.SANKARAN, JUDGE csl