IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).NO. 16401 OF 2010(O) ---------------------------------------- AGAINST THE ORDER DATED 20/03/2010 IN IA 2397 /2009 IN OS.66/2007 OF MUNSIFF COURT, CHITTUR .................... PETITIONER(S): ----------------------- SUNIL KUMAR, S/O. KANDAMUTHAN, AGED 34 YEARS, RESIDING AT KAVALAKODE HOUSE, PAYYALLUR, KOLLENGODE NO.II, CHITTUR TALUK. BY ADV. SRI.A.ANILKUMAR SMT.R.RANJINI RESPONDENT(S): ------------------------- SWAMINATHAN, S/O. KANDAMUTHAN, AGED 56 YEARS, RESIDING AT NADUPADAM, PAYYALLUR, KOLLENGODE NO.II,VILLAGE, CHITTUR TALUK ADV. SRI.P.R.VENKETESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 THE PHOTOCOPY OF PLAINT FILED BY THE RESPONDENT. EXHIBIT P2 THE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER. EXHIBIT P3 THE PHOTOCOPY OF THE COMMISSIONER REPORT AND THE PLAN. EXHIBIT P4 THE PHOTOCOPY OF THE OBJECTION FILED TO THE REPORT. EXHIBIT P5 THE PHOTOCOPY OF THE APPLICATION FOR SETTING ASIDE THE REPORT. EXHIBIT P6 THE PHOTOCOPY OF THE OBJECTION TO THE APPLICATION. EXHIBIT P7 THE PHOTOCOPY OF THE ORDER DATED 20.3.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.16401 of 2010 ==================================== Dated this the 13th day of July, 2010 J U D G M E N T Defendant in O.S. No.66 of 2007 of the court of learned Munsiff, Chittoor is the petitioner before me. It is a fight between petitioner and his brother, respondent-plaintiff. The latter claimed that as per gift deed No.40 of 1975 executed by his father, he is the owner in possession of the suit property but apprehended that petitioner might create documents in respect of the suit property fraudulently and cause material alterations to the property. Petitioner while disputing the gift deed relied on by respondent challenged identity of the suit property and claimed that descriptions in plaint schedule and the gift deed are not correct. Though it was for the look out of respondent to identify the property in case he thought that such a course of action was necessary in the nature of contentions raised by petitioner, that responsibility was taken up by petitioner and he filed application for appointment of an Advocate Commissioner. Accordingly the Commissioner with assistance of Taluk Surveyor inspected property and submitted report and plan. Report and plan were W.P(C) No.16401 of 2010 -: 2 :- objected by the respondent-plaintiff who filed I.A. No.2397 of 2009 (Ext.P5) to set aside the same. That application was resisted by the petitioner. According to the petitioner there was no reason to interfere with the report and plan and respondent is trying to circumwent the situation created by absence of specific boundaries in the gift deed relied on by him. Learned Munsiff considered the objection to the report and plan, found that report and plan are to be set aside and I.A. No.2397 of 2009 was allowed. That order is under challenge in this Writ Petition. Learned counsel for petitioner contended that properties were measured as required in the application and setting aside of the report and plan was not necessary. At any rate it is sufficient that further datas are called for keeping the report and plan on record. Learned counsel for respondent contended that report and plan submitted are not useful to decide the controversy and hence learned Munsiff was justified in allowing the application. 2. This Court in Sarojini v. Karthiyani Amma (2010 [1] KLT SN 17 (Case No.19) stated that in the matter of acceptance or rejection of report and plan submitted by the Advocate Commissioner it is largely within the discretion of trial court and once the rial court exercised the discretion in favour of W.P(C) No.16401 of 2010 -: 3 :- accepting or rejecting the report this Court is not required to interfere unless it would result in injustice to the party concerned. Question is whether order passed by the learned Munsiff on I.A. No.2397 of 2010 requires interference. 3. According to the respondent, pursuant to the gift deed executed by his father in respect of the suit properties he obtained purchase certificate for the said properties. It is seen from the order under challenge that according to the Commissioner suit properties as stated in revenue records were originally paddy fields. It is also seen that identification was made solely on the basis of survey number without referring to the documents and purchase certificate relied on by parties. Court below also found that in the plaint schedule survey number is given as 225/4, 9 and 10 while Advocate Commissioner has stated that threshing floor and tank are situated in Sy.No.227. Court below observed that Commissioner was of the view that threshing floor and tank are not mentioned in the gift deed as against recitals in the document itself. It is also seen from the report that though as question No.2 it was requested by petitioner that property covered by Purchase Certificate No.5145 of 1976 in favour of the donor be measured and identified, at the W.P(C) No.16401 of 2010 -: 4 :- time of inspection petitioner told the Advocate Commissioner that it is not necessary to measure the property in that way. Thus occasion to identify the property covered by Purchase Certificate No.5145 of 1976 based on which the father is stated to have gifted the suit properties to the respondent has been lost. Learned Munsiff has referred to the discrepancies in the plan and observed that report and plan will not serve the purpose and that fresh report and plan are to be obtained. On the facts and circumstances I do not find reason to think that setting aside of the report and plan has resulted in any injustice so that so that this Court is required to interfere under Article 227 of the Constitution. 4. Learned counsel for petitioner made a request that the very same Advocate Commissioner may be deputed to inspect the suit property. I make it clear that it is open to the petitioner to make request in that regard before the learned Munsiff. Writ Petition is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv