IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 8322 of 2009(O) ------------------------- OS.175/2005 of MUNSIFF COURT,ALUVA .................... PETITIONER(S): --------------- GOPALAN, AGED 73, S/O.MANIYAN, MADAVANA HOUSE, THOTTAKKATTUKARA, ALUVA TALUK. BY ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN SRI.A.JOSEPH GEORGE SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENT(S): --------------- 1. SEETHA LAKSHMI, W/O.KUTTAPPAN, THOTTATHIPARAMBIL HOUSE, THOTTAKKATTUKARA, ALUVA. 2. KUTTAPPAN, THOTTATHIPARAMBIL HOUSE, THOTTAKKATTUKARA, ALUVA. ADV. SRI.V.K.GOPALAKRISHNA PILLAI FOR R1 & 2 SRI.GOPAKUMAR G. (ALUVA) FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.8322/2009 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 20.1.2009 IN I.A.NO.1755/2008 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P2: COPY OF THE PLAINT IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P3: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P4: COPY OF I.A.NO.824/2005 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P5: COPY OF THE REPORT AND ROUGHT SKETCH SUBMITTED BY ADVOCATE ROSHNI.R.NAIR IN I.A.NO.824/2005 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P6: COPY OF I.A.NO.492/2006 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P7: COPY OF THE REPORT DATED 7.3.2006 IN I.A.NO.492/2006 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P8: COPY OF THE I.A.NO.1029/2007 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P9: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER, FATHIMA.A. IN I.A.NO.1029/2007 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA, WITH SURVEY PLAN DATED 23.2.2008. EXT.P10: COPY OF I.A.NO.783/2008 IN I.A.NO.1029/2007 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P11: COPY OF THE OBJECTION DATED 4.6.2008 FILED BY THE PETITIONER IN I.A.NO.783/2008, MUNSIFF COURT, ALUVA. EXT.P12: COPY OF OBJECTION DATED 5.8.2008 FILED BY THE PETITIONER TO EXT.P9 REPORT OF THE ADVOCATE COMMISSIONER. EXT.P13: COPY OF I.A.NO.1755/2008 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. EXT.P14: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.1755/2008 IN O.S.NO.175/2005, MUNSIFF COURT, ALUVA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.8322 OF 2009 (O) ----------------------------------- Dated this the 2nd day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs:- i) to set aside Ext.P1 order passed by the Munsiff Court, Aluva and to allow Ext.P13 application as prayed for. ii) to grant such other reliefs as are deemed fit and proper I the facts and circumstances of the case. 2. Petitioner is the plaintiff in O.S.No.175/2005 on the file of the Munsiff's Court, Aluva. Ext.P2 is the copy of the plaint in that suit. Plaintiff sought for a decree of permanent prohibitory injunction restraining the defendants from committing any waste in plaint 'A' schedule property and from doing anything including any construction on the western portion of the defendants building or blocking the air and light WPC.8322/09 2 of the plaint 'A' schedule property. Admittedly, plaint 'B' schedule property belongs to the defendants. In the suit and the application moved by the plaintiff, an Advocate Commissioner was appointed to identify and fix the suit properties with the assistance of a Surveyor. Submissions made at the bar disclose that a report and plan prepared by the Advocate Commissioner at the first instance, accepting the objections raised by the parties were set aside and it was remitted for filing a fresh report and plan. The Commissioner complied with the orders of the court, prepared a report and also a plan with the assistance of a surveyor after conducting local inspection and measurement over the suit property. Initially, the defendants filed objections to the report contending that there is some mistake in the measurement shown by the Commissioner. Ext.P10 is the petition filed by the defendants for remitting the report to the Commissioner with direction to carry out the corrections, which were pointed out in their petition. That petition was objected to by the plaintiff filing Ext.P11 objection. The court, it is submitted, allowed Ext.P10 petition, and pursuant thereto, it is stated WPC.8322/09 3 the Commissioner carried out the correction and filed a fresh report. The learned counsel for the petitioner disputes the filing of a fresh report pursuant to orders passed on Ext.P10 petition moved by the defendants. Whatever that be, for resolving the controversies raised in this writ petition, I need not examine or advert to the correctness of the statement as to whether the report has been subsequently filed or not. Now the present writ petition has been filed by the plaintiff impeaching the correctness of Ext.P1 order passed by the learned Munsiff disallowing the petition moved by the plaintiff for setting aside the report and plan. The main objection raised by the plaintiff is to the plan prepared by the Commissioner with the assistance of a Surveyor is that it has been done in accordance with the new survey records and not on the basis of the old survey sketch. Petitioner wanted to have an identification of the suit properties with reference to the old survey sketch. Another objection raised was that all the matters sought for in his application for Commission have also not been considered and given effect by the Commissioner while filing the report and WPC.8322/09 4 plan before the court. After hearing the counsel on both sides, the learned Munsiff, having found no merit in the objections raised, passed Ext.P1 order declining the request for remitting the report. 3. I heard the learned counsel on both sides. The learned counsel for the petitioner reiterated the objections canvassed before the court below for remission of the report contending that the plaintiff has no other alternate efficacious remedy other than seeking the intervention of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. On the other hand, the learned counsel for the respondents submitted that even at the time when he filed objection to the Commission report, there was no request from the plaintiff for setting aside the report on the ground now canvassed but even the request for correction sought by him was strenuously and vehemently opposed. The attempt of the plaintiff for identification of the property by old survey records was not a matter which was sought for earlier, and at this stage, there is no need for such identification since the report WPC.8322/09 5 and plan already prepared by the Commissioner are sufficient enough to identify the suit properties, is the submission of the learned counsel for the respondents. I do not want to express any opinion on the merit of the report and plan, which is to be considered by the learned Munsiff in the trial of the suit. After examining the Commissioner and also the Surveyor, the leaned Munsiff was satisfied from the materials produced that the report and plan do not warrant setting aside as desired by the plaintiff and that there is no need for a fresh Commission and measurement of the suit property with reference to old survey records. Commission report is at the most one piece of evidence among others in a suit which relate to an immovable property. Of course, it has got its own value and merit but it can never be considered as the decisive factor. Whatever be the merit of the Commission report and plan, whether it is accepted or not by the trial court, the plaintiff will get sufficient opportunity to impeach its correctness in the appropriate forum as provided by law. It is not proper for this Court in exercise of the supervisory jurisdiction vested under Article 227 of the Constitution of India to examine the merit of WPC.8322/09 6 the report and plan filed in the suit over which a decision is yet to be given by the trial Judge. I find this is not a fit case for invoking the supervisory jurisdiction under Article 227 of the Constitution of India. Writ petition is dismissed. I make it clear that whatever contentions raised by the plaintiff with respect to the merit of the Commission report and plan, shall be considered by the trial Judge irrespective of the findings entered under Ext.P1 order, in the trial of the suit. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009