IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 WP(C).No. 27158 of 2008(G) ---------------------------------------- (O.S.NO.111/99 OF MUNSIFF COURT, PERUMBAVOOR) PETITIONER: --------------------- JOY VARGHESE, S/O.VARKEY, RESIDING AT CHIRACKAKKUDY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE. BY ADV. SRI.V.V.SURENDRAN SRI. P.A.HARISH RESPONDENTS: ------------------------ 1. C.V.VARKEY, S/O.VARKEY, RESIDING AT CHIRACKAKKUDY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE. 2. MARY, W/O.C.V.VARKEY, RESIDING AT CHIRACKAKKUDY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE. 3. DIVYA, D/O.C.V.VARKEY, RESIDING AT CHIRACKAKKUDY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE. 4. SOUMYA, D/O.C.V.VARKEY, RESIDING AT CHIRACKAKKUDY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE. Kss ..2/- ...2.... WPC.NO.27158/2008 G 5. RAMYA, D/O.C.V.VARKEY, RESIDING AT CHIRACKAKKUDY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE. 6. ACHAMMA, W/O.KURIAN MATHEW, RESIDING AT THALEKKATTU HOUSE, AAYAKKAD KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK. 7. ALIYAMMA, W/O.ABRAHAM THARIYAN, AREECKAL HOUSE, VAPPALASSERY P.O., MEKKAD KARA, NEDUMBASSERY VILLAGE, ALUVA TALUK. 8. MARY, W/O.DR. GEORGE, RESIDING AT KANJIRATHAINGAL HOUSE, MUDAKUZHA P.O., MUDAKUZHA KARA, VENGOOR VILLAGE. 9. ALEX, S/O.GEORGE KATHANAR, RESIDING AT KUTTAKKAYATH HOUSE, KADAYIRUPPU P.O., VALAMBOOR KARA, PATTIMATTOM VILLAGE. 10. ABI, S/O.GEORGE KATHANAR, RESIDING AT KUTTAKKAYATH HOUSE, KADAYIRUPPU P.O., VALAMBOOR KARA, PATTIMATTOM VILLAGE. 11. AJU, S/O.GEORGE KATHANAR, RESIDING AT KUTTAKKAYATH HOUSE, KADAYIRUPPU P.O., VALAMBOOR KARA, PATTIMATTOM VILLAGE. 12. GEORGE, S/O.IYPE, RESIDING AT KUTTAKKAYATH HOUSE, KADAYIRUPPU P.O.,VALAMBOOR KARA, PATTIMATTOM VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 27158 OF 2008 ............................................ DATED THIS THE 5th DAY OF SEPTEMBER, 2008 JUDGMENT Petitioner is the plaintiff and respondents, the defendants in O.S.111 of 1999 on the file of Munsiff Court, Perumbavoor. Suit is for setting aside a cancellation deed and a sale deed and for declaration of right and title of petitioner to item Nos.1 and 2 of the plaint schedule properties and for a permanent prohibitory injunction. A Commission was appointed and Commissioner submitted a report and plan. I.A.1808 of 2008 was filed by petitioner to remit the report back to the Commissioner. It was dismissed under Ext.P8 order. This petition is filed under Article 227 of Constitution of India challenging Ext.P8 order. 2. Learned counsel appearing for petitioner was heard. 3. In view of the order to be passed in this petition, it is not necessary to issue notice to respondents. 4. Ext.P4, the application filed for appointment of the Commission shows that the prayer was to identify and demarcate the properties covered under document No.1889/1950 as well as the gift deed 540/1992 and 1047/1994. Ext.P5 report submitted by the Commissioner along with Ext.P5(a) and Ext.P5(b) plans show that Commissioner identified only the property covered by document WP(C) 27158/2008 2 No.1047 of 1994 and document No.540 of 1992. Though it is stated in the report that properties were identified as sought for in the Commission application, the data is not furnished as to how it was identified. Under Ext.P8 order, learned Munsiff dismissed the application stating that the only objection is with regard to resurvey No. 342/5 shown therein and it is a mistake and therefore there is no necessity to remit the report back to the Commissioner. 5. Ext.P6, the application filed by petitioner shows that it was the specific contention of petitioner that Commissioner has not properly identified the property covered by Document No.540/1992 and 1047/1994 and the property identified by the Commissioner is the property which originally belonged to the mother of petitioner. It is clear that while dismissing the application, learned Munsiff did not consider the objections properly. 6. In such circumstances, Ext.P8 order is quashed. Learned Munsiff is directed to reconsider I.A.1808 of 2008 and pass appropriate order in accordance with law. Learned Munsiff has to find out whether the property covered by Document No.1047/1994 and 540/1992 were properly identified by the Commissioner and that too, with reference to the original title deed belonging to the father. M.SASIDHARAN NAMBIAR, JUDGE lgk/-