IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 OP(C).No. 4284 of 2011(O) ---------------------------------- PETITIONER : - -------------------- MADHAVIKUTTY, D/O KRISHNAN NAIR, AGED 70 YEARS, MANAKKAL HOUSE, SEKHARIPURAM, PALAKKAD - 678 010. BY ADV. SRI.K.P.BALAGOPAL RESPONDENT : - ------------------------ RAMESH, S/O LATE SETHUMADHAVAN NAIR, AGED ABOUT 47 YEARS, 'SREEPADAM', SEKHARIPURAM, PALAKKAD - 678 010. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 4284 of 2011(O) APPENDIX PETITIONER'S EXHIBITS : EXT P1 : COPY OF THE ORDER DATED 03.12.2011 IN IA NO. 2324/2011 IN OS NO. 172/2009 OF THE ADDITIONAL MUNSIFF'S COURT, PALAKKAD. EXT P2 : COPY OF THE PLAINT IN OS NO. 172/2009 ON THE FILE OF THE MUNSIFF'S COURT, PALAKKAD. EXT P3 : COPY OF THE REPORT AND PLAN DATED 23.08.2011 SUBMITTED BY THE ADVOCATE COMMISSIONER. EXT P4 : COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT. P3 COMMISSION REPORT. EXT P5 : COPY OF THE AFFIDAVIT OF THE PETITIONER IN SUPPORT OF THE INTERLOCUTORY APPLICATION ALONG WITH COPY OF IA NO. 2324/2011. RESPONDENT'S EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE DMR/- THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.4284 of 2011 --------------------------------------- Dated this 23rd day of December, 2011 JUDGMENT Plaintiff in O.S.No.172 of 2009 of the Court of learned Additional Munsiff, Palakkad is aggrieved by Ext.P1, order refusing to set aside the report and plan submitted by the Advocate Commissioner. 2. The suit is for fixation of boundary, mandatory injunction and for a declaration regarding a way on the northern side of plaint B schedule. Advocate Commissioner submitted report and plan to which petitioner filed objection contending that properties are not properly identified with reference to the final decree in O.S.No.104 of 1946. Petitioner filed I.A.No.2324 of 2011 to set aside the report and plan. That application was dismissed by Ext.P1, order which is under challenge. 3. It is contended by learned counsel that entire properties of the respondent/defendant as per final decree in O.S.No.104 of 1946 are not measured and that such a measurement is required to identify the suit property. 4. It is seen from the report and plan that measurement was done with the assistance of the Town Surveyor. It is stated O.P(C).No.4284 of 2011 -: 2 :- that the Town Surveyor located the property covered by the final decree in O.S.No.104 of 1946. Learned Munsiff observed that photocopy of the sketch of properties in the final decree in O.S.No.104 of 1946 was available with the Commissioner and Surveyor to effect measurement. It is stated that if at all there is any mistake in calculation, that could be corrected by examining the Commissioner and Surveyor. 5. So far as existence of way on the northern side of the property is concerned, Commissioner reported that at the time of inspection he could not see any such way. 6. Learned Munsiff has also observed that in the course of evidence it is open to the petitioner to prove that the report and plan are erroneous and could not be acted upon. Hence the right of petitioner to prove that the report and plan are erroneous has not been foreclosed. The Advocate Commissioner and Surveyor were not examined on I.A.No.2324 of 2011. In the above circumstance I do not find reason to interfere, particularly as right of petitioner to show, in the course of trial that the report and plan are not to be accepted, is reserved by the learned Munsiff. This original petition is disposed of as above. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-