IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 WP(C).No. 22965 of 2009(O) -------------------------- OS.530/2007 of MUNSIFF COURT, CHALAKUDY .................... PETITIONER(S): ------------------------- PAUL, S/O.KANICHAI ANTONY, VYNTHALA DESOM, KALLUR VADAKUMURY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): --------------------------- 1. PAULSON, S/O.KANICHAI KOCHAPPU, VYNTHALA DESOM, KALLUR VADAKUMURY VILLAGE, MUKUNDAPURAM TALUK. 2. ROSILY, W/O.PAULSON, KANICHAL HOUSE, VYNTHALA DESOM, KALLUR VADAKUMURY VILLAGE, MUKUNDAPURAM TALUK. R1 & R2 BY ADV. SRI.C.P.SAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22965/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT DTD. 15/12/07 IN O.S.NO.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. P2: COPY OF THE WRITTEN STATEMENT DTD. 11/04/08 FILED BY THE RESPONDENT IN O.S.NO.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. P3: COPY OF THE COMMISSION REPORT DTD. 1/1/2008 FILED IN O.S.NO. 530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. P4: COPY OF THE APPLICATION DTD.11/06/08 FILED BY THE PETITIONER IN O.S.NO.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. P5: COPY OF THE I.A.NO.1823/08 DTD. 3/10/08 FILED BY THE RESPONDENTS IN O.S.NO.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. P6: COPY OF THE ORDER DTD. 17/12/08 IN I.A.NO.1823/08 IN O.S.NO.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. P7: COPY OF THE JUDGMENT DTD. 16/02/09 IN WPC.NO.1343/09 OF THIS HONOURABLE COURT. P8: COPY OF THE INTERIM REPORT OF THE ADVOCATE COMMISSIONER DTD. 31/07/09 IN O.S.NO.530/07 OF THE MUNSIFF'S COURT, CHALAKUDY. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ------------------------- W.P (C) No.22965 of 2009 -------------------------- Dated this the 7th April, 2010 J U D G M E N T In this writ petition under Articles 226 and 227 of the Constitution of India, the prayer made is that the order passed by the court below on I.A No.1823/08 in O.S No.530/07 be set aside and the court below be directed to pass fresh orders on the petition, after hearing the petitioner. 2. Petitioner instituted O.S No.530/07 seeking permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule property. Not only the defendants denied the allegations in the plaint, but also raised a counter claim. They sought for a decree to put up boundaries demarcating the properties of the plaintiff and the defendants. 3. Along with the suit, petitioner had moved for an appointment of Advocate Commissioner. The Commissioner filed his report i.e. Ext.P3. Petitioner would say that there is a clear demarcation of the W.P (C) No.22965 of 2009 2 properties of the petitioner and respondents. Various other factors are stated in the writ petition which are not necessary for the purpose. Suffice to say that respondents before this Court had filed an I.A No. 1823/2008 on 3.10.2008. Copy of which is produced as Ext.P5. In spite of the objection filed by the petitioner, the court below allowed the application and Ext.P6 order was passed. Petitioner challenged the same in W.P. (C) No.1343/2009 and the said writ petition was disposed of by Ext.P7 judgment. The said judgment made it clear that it is for the respondents to produce necessary title deeds for identifying the properties and the petitioner was also permitted to file a work memo. 4. Pursuant to Ext.P7 judgment, it is stated that the court below chose to depute a Commissioner for inspecting, measuring and demarcating the property. The Advocate Commissioner had filed an interim report on 31.7.2009. The direction given to the Commissioner was to identify the boundaries between the properties of the plaintiff and the defendants. The case was posted on W.P (C) No.22965 of 2009 3 31.7.2009 for report. The report was filed. The complaint of the petitioner is that without hearing the objection to the commissioner's report, further orders have been passed. The Commissioner has reported that there is no boundary. Thereafter the court below took the matter and passed an order on I.A No.1823/2008. 5. Learned counsel appearing for the respondents pointed out that there is no merit in the contentions raised by the petitioner. Petitioner has produced a copy of B- Diary before this Court. It is seen that on. 31.7.2009, the commissioner filed an interim report in which he pointed out that in order to conduct the measurement, Village Officer's help is necessary since there is no boundary. 6. The grievance of the petitioner is that he did not even given an opportunity to peruse the records. He has serious objections to the various statements made in the report. Without giving an opportunity of raising his objection, subsequent order has been passed. 7. One of the issues in this case is regarding the boundary between the plaintiff's property and defendant's W.P (C) No.22965 of 2009 4 property. Plaintiff claimed that there was clear demarcation between the plaintiffs' property and the defendants property. It is seen that the case was posted on 31.7.2009 for filing commissioner's report. On that day Commissioner is seen to have filed an interim report. What is submitted by the petitioner is that his objections to the interim report filed by the Commissioner had not been considered and subsequent order was passed without giving an opportunity of hearing to the petitioner. If that be so, order is unsustainable in law. 8. In the result, petition is allowed. The impugned order is set aside and the court below is directed to take up I.A. No.1823/2008 in O.S No.530/07 for fresh consideration and pass orders thereon, after giving an opportunity of hearing to both sides, as early as possible, at any rate, within one month from the date of re-opening of the courts after summer vacation. P.BHAVADASAN, JUDGE ma W.P (C) No.22965 of 2009 5 W.P (C) No.22965 of 2009 6