IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WP(C).No. 26323 of 2007(H) -------------------------- OS.711/2003 of PRL.M.C.,ERNAKULAM .................... PETITIONER: -------------------- C.A.SUKUMARAN, AGED 54 YEARS, S/O AYYAPPAN, ANANTHAPURATHCHIRA VEETIL HOUSE, KUMBALAM. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT: ----------------------- M.K.GANESHAN, AGED 46 YEARS, MUKKIL HOUSE, KUMBALAM. BY ADV. SRI.P.V.GEORGE(ONAKKOOR) - R1 SRI.REJI GEORGE - R1 SMT.MANJU RAJAN - R1 SMT.A.AMRUTHA VIDYADHARAN - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26323/2007 H APPENDIX PETITIONER'S EXHIBITS: EXT.P1 & P2: COPY OF THE DOCUMENT BEARING NO.3407/87 AND 4031/03 OF ERNAKULAM S.R.O. EXT.P3: COPY OF THE COMMISSION APPLICATION. EXT.P4: COPY OF THE COUNTER AFFIDAVIT. EXT.P5: COPY OF THE COMMISSION REPORT AND SKETCH. EXT.P6: COPY OF THE OBJECTION. EXT.P7: COPY OF I.A.NO.3285/07. EXT.P8: COPY OF THE ORDER IN I.A.NO.3285/07. RESPONDENT'S EXHIBIT - N I L /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.26323 OF 2007 =========================== Dated this the 19th day of June, 2008 JUDGMENT Petitioner is the plaintiff in O.S.711/2003 on the file of Munsiff Court, Ernakulam. Defendant is the respondent. After the Commissioner submitted a plan and report petitioner filed I.A.3285/2007 to set aside that report and to appoint a Commission to demarcate the plaint schedule property on the basis of measurements shown in the documents. Under Ext.P8 order the petition was dismissed. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. Learned counsel appearing for petitioner and respondent were heard. 3. The argument of the learned counsel appearing for petitioner is that as per the title deed of the petitioner, plaint schedule property is a square plot and as demarcated by the W.P.(C)26323/2007 2 Commissioner in plan appended to Ext.P5 report, it is not a square plot and it was identified and fixed based on resurvey it was not finalised and in such circumstance, learned Munsiff should have directed the Commissioner to measure the property on the basis of the title deed. Learned counsel also argued that with the report and plan, learned Munsiff cannot resolve the dispute between the parties and in such circumstance, Ext.P8 order is to be quashed. 4. Learned counsel appearing for respondent submitted that learned Munsiff has properly considered the application and for proper and valid reasons dismissed the petition under Ext.P8 order and there is no reason to interfere with that order in exercise of the powers of this court under Article 227 of the Constitution of India. It was also submitted that in the nature of the relief sought for in the suit, there is no necessity to prepare a plan as sought for by the petitioner and in such circumstance, petition is only to be W.P.(C)26323/2007 3 dismissed. 5. On hearing the learned counsel for both sides and in the nature of the relief sought for in the plaint, it is not necessary to interfere with Ext.P8 order passed by the learned Munsiff as I do not find any illegality or irregularity warranting interference. Petitioner is entitled to adduce evidence in support of the objection taken against Ext.P5 report and plan. He is also entitled to prove that the resurvey is not finalised. If after recording the evidence court finds that a Commissioner is to be appointed to identify the property with reference to the old survey or the title deed, Ext.P8 order will not preclude the court from appointing a Commissioner. Writ Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006