IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 10302 of 2007(B) -------------------------- AGAINST THE ORDER DATED 09/03/2007 IN IA 8302/06 IN OS.1275/2001 of I ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM. .................... PETITIONERS: ----------------- 1. JAGAL PRASAD, S/O.V.K.PANICKER, AGED 66, PANICKER'S M.N.H.5, MALLOOR NAGAR, VAZHUTHACAUD, TRIVANDRUM. 2. REVAMMA, D/O.SMT.KAMALAKSHI, PANICKER'S M.N.H.5, MALLOOR NAGAR, VAZHUTHACAUD, TRIVANDRUM. BY ADV. SRI.BASANT BALAJI SRI.K.RAJESH KANNAN RESPONDENTS: --------------------- 1. SHEELA, D/O.RAJAMMA, T.C.14/1045, RAJIV NAGAR, VAZHUTHACAUD, TRIVANDRUM. 2. RAJAMMA, D/O.PANKAJAKSHI AMMA, T.C.14/1045, RAJIV NAGAR, VAZHUTHACAUD, TRIVANDRUM. 3. GOPI, S/O.THANKAPPAN, T.C.14/133, T.K.G.N.ROAD, RAJIV NAGAR, VAZHUTHACAUD, TRIVANDRUM. BY ADV. SRI.K.RAMAKUMAR (SR.) FOR R1 & 2 SRI.R.JAYACHANDRAN FOR R1 & 2 SRI.D.GANESH KUMAR FOR R3 SMT.K.I.KAVITHA FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: (...2/-) (2) ORDER IN I.A. 8302 OF 2006 IN O.S. 1275 OF 2001 ALLOWED 20th June, 2008 Sd/- M. SASIDHARAN NAMBIAR, JUDGE APPENDIX Petitioner’s Exhibits:- Ext.P1:- True copy of the sketch Ext.P2:- True copy of plaint in O.S.1275/01 of Munsiff Court, Trivandrum Ext.P3:- True copy of commission application in OS 1275/01 of Munsiff Court, Trivandrum. Ext.P4:- True copy of report and plan of the Adv. commissioner Ext.P5:- True copy of IA 8302/06 in OS 1275/01 of Munsiff Court, Trivandrum Ext.P6:- True copy of deposition of CW1 in OS 1275/01of Munsiff Court, Trivandrum. Ext.P7:- True copy of IA 2693/07 in OS 1275/01 of Munsiff Court Trivandrum Ext.P8:- True copy of order dt. 9.3.07 in IA 8302/06 in OS 1275/01 of Munsiff Court Trivandrum Respondent’s Exhibits:- Ext.R1(a):- True copy of sketch prepared by the Taluk Surveyor on the orders of the Munsiff’s Court in O.S 1275/2001 //True Copy// P.A. to Judge M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 10302 OF 2007 ------------------------------------------ Dated this the 20th day of June, 2008 JUDGMENT Petitioners are the plaintiffs in O.S. 1275 of 2001 on the file of Additional Munsiff, Thiruvananthapuram. Respondents are the defendants. Ext.P4 report and plan were submitted by the commissioner after inspection on 8.10.2003. Petitioners filed I.A. 8302 of 2006 to remit the report and plan to the commissioner contending that commissioner has not properly identified plaint A schedule item 2 and 3 properties. Under Ext.P8 order learned Munsiff dismissed the application. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioners and learned senior counsel appearing for respondents were heard. 3. The learned counsel appearing for petitioners pointed out that as per the title deed and description of plaint, item No. 1 of plaint A schedule property lies to the WPC10302/07 2 north of plaint B schedule property belonging to the first defendant and plaint C schedule property lies further to the west of item No. 1 of plaint A schedule property and plaint B schedule property and item No. 2 and 3 of plaint schedule property lies in between the said properties. It is pointed out that as per the description of the property in the plaint, item No. 2 and 3 of plaint A schedule properties lie to the east and south of plaint C schedule property and to the west of item No.1 of plaint A schedule property and B schedule property and it is not the property identified by the commissioner and in such circumstances learned Munsiff should have remitted the report back to the commissioner to submit a further report. 4. Though learned senior counsel vehemently argued that there is no reason to interfere with Ext.P8 order, on going through the description of the plaint item No. 2 and 3 of plaint A schedule properties as well as the title deed it is clear that identification of the property in Ext.P4 report submitted by the commissioner does not appear to be correct. In such circumstances learned Munsiff should have remitted the report back to the commissioner to file a further report in the light of the objection filed by the petitioners. WPC10302/07 3 5. Ext.P8 order is set aside. I.A. 8302 of 2006 in O.S. 1275 of 2001 is allowed. The report and plan submitted by the commissioner is remitted back to the commissioner. Commissioner shall identify item No. 2 and 3 of the plaint A schedule properties with reference to the title deed and submit a further report considering the objections raised in I.A. 8302 of 2006. Writ petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-