IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 32832 of 2007(H) --------------------------------------- (O.S.620/2005 OF ADDL.MUNSIFF COURT,NEDUMANGAD) .................... PETITIONERS: -------------------- 1. ALEX (MENTALLY INCAPACITATED),S/O. SUBHASH, 2. TINU (MINOR), D/O USHAKUMARI, RESIDING AT CHRISTAL HOUSE, CHITTAZHA, PANTHAPLAVU MURI, VATTAPPARA VILLAGE, NEDUMANGAD, TRIVANDRUM-695028. (THE PETITIONERS ARE REP. BY THEIR NEXT FRIEND FREEDA, W/O. M.JOHNSON, RESIDING AT CHANIPLAVILA VEEDU, LOURDPURAM, KANJIRAMKULAM PO.,TRIVANDRUM-695 524.) BY ADV. SRI.V.CHITAMBARESH, SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU. RESPONDENTS: ----------------------- 1. DEENAL LILLYBHAI, 2. DASAYYAN WELLINGTON, 3. DASAYYAN NOBLE CHRISTOPHER, 4. JOSHWA DASAYYAN, (RESPONDENTS 1 TO 4 ARE RESIDING AT PARAVILAKATHU VEEDU), MARUTHOOR, KAZHANADU MURI, VATTAPPARA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM-695 028. 5. ELIZABETH CHRISTINAL, 6. USHAKUMARI, D/O. CHRISTINAL, RESPONDENTS 5 AND 6 ARE RESIDING AT CHRISTAL HOUSE, CHITTAZHA, PANTHAPLAVU MURI, VATTAPPARA VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM-695 028. R1 TO R4 BY ADV. SRI.R.S.KALKURA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32832/2007-H: APPENDIX PETITIONERS' EXHIBIT: EXT.P.1: COPY OF THE ORDER IN I.A. NO. 2646/2007 IN O.S. NO. 620/2005 ON THE FILE OF THE COURT OF THE ADDITIONAL MUNSIFF OF NEDUMANGAD DTD. 23/08/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// prv. M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 32832 OF 2007 ------------------------------------------ Dated this the 3rd day of July, 2008 JUDGMENT Petitioners are the plaintiffs and respondents the defendants in O.S. 620 of 2005 on the file of Addl.Munsiff Court, Nedumangad. I.A. 2646 of 2007 was filed by them for appointment of a commission to prepare a plan with the assistance of a Surveyor. Under Ext.P1 order it was dismissed. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned senior counsel appearing for petitioners and learned counsel appearing for respondents were heard. 3. Under Ext.P1 order the learned Munsiff dismissed the petition for the reason that respondents submitted that in O.S. 725 of 2002 commissioner has submitted a report wherein the property was identified and therefore there is no necessity to appoint a commission. The learned Munsiff found that if that be so there is no need for appointment of a commission. Learned senior counsel argued that the decree and judgment in O.S. 725 of 2002 is specifically challenged in this suit and the report submitted in that suit cannot be accepted in the present suit and WPC32832/07 2 identification of plaint B schedule property is disputed and so it is necessary to take out a commission. The argument of the learned counsel appearing for respondents is that attempt of the petitioner is to avoid the plan prepared in the earlier suit and it cannot be allowed. 4. When the identity of the plaint B schedule property is disputed, learned Munsiff should have appointed a commission to identity the plaint B schedule property with the assistance of Surveyor. If at all, report in the earlier suit is only a piece of evidence which could be relied on by the party by proving the report. 5. In such circumstances Ext.P1 order is quashed. I.A. 2646 of 2007 is allowed. Learned Munsiff is directed to appoint a commission to identify the plaint schedule properties as sought for. Respondents are at liberty to file a work memo before the commissioner. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-