IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 OP(C).No. 1938 of 2011(O) ------------------------- AGAINST THE ORDER IN IA.45/2010 IN OS.32/2009 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER (S): -------------------- DR. M.S.HEMA, D/O.SAHASRANAMA IYER, SREEVALSOM 28/1299 (SRA-147),KAILAS NAGAR, VANCHIYUR VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): --------------- ANANDA SUBRAMANYA AYYAR @ ANAND, S/O.SAHASRANAMA IYER, VALIYA MADOM, KOTTARKAVU MURI,KOTTAKAKOM, MAVELIKKARA-PIN-690 101. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1938/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE I.A.NO.959/2009. EXT.P2: COPY OF OBJECTION FILED BY THE PETITIONER. EXT.P3: COPY OF ORDER IN I.A.NO.959/2009 EXT.P4: COPY OF COMMISSIONER REPORT DATED 18.9.2009. EXT.P5: COPY OF OBJECTION DATED 7.1.2010 FILED BY THE PETITIONER. EXT.P6: COPY OF I.A.NO.45/2009 EXT.P7: COPY OF DEPOSITION OF PW1 EXT.P8: COPY OF DEPOSITION OF PW2 EXT.P9: COPY OF THE ARGUMENT NOTE DATED 19.10.2010 FILED BY THE PETITIONER. EXT.P10: COPY OF THE ARGUMENT NOTES DATED 20.12.2010 FILED BY THE PLAINTIFF EXT.P11: COPY OF ORDER DATED 9.2.2011 IN I.A.NO.45/2010 IN O.S.NO.32/09 OF MUNSIFF COURT, MAVELIKKARA. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1938 of 2011 --------------------------------------- Dated this the 21st day of June, 2011 JUDGMENT The petitioner, the defendant in O.S.No.32 of 2009 on the file of the Munsiff's Court, Mavelikkara, is not satisfied with the report submitted by the Commissioner. Originally, a Commissioner was appointed to inspect the property and to prepare a sketch. Later, the plaintiff filed an application to appoint the Commissioner to measure the property and to find out the boundaries of the property with reference to the survey records. That application was objected to by the defendant. However, the court below noticed that the defendant also wanted the counter claim property to be measured first before locating the plaintiff's property. The court below, as per Exhibit P3 order dated 8th July 2009, allowed the application filed by the plaintiff to appoint a Commissioner. The operative portion of Exhibit P3 reads as follows : “In the said circumstances, the application is allowed. Sri.Suresh Kumar is appointed as the Commissioner and Sri.Vijayan Nair is appointed as the Surveyor. Plaintiff shall deposit batta of ` OP(C) No.1938/2011 2 1,500/- towards the Commissioner and defendant shall deposit ` 500/- towards the batta of Commissioner. Plaintiff shall deposit batta of ` 1,000/- towards the Surveyor and defendant shall deposit batta of ` 750/- towards the batta of surveyor. Deposit the batta within three days. The Commissioner shall measure the properties as per re-survey plan and the title deed and shall also prepare a separate plan by measuring the counter claim property and the pathway to B schedule before measuring plaint schedule property. The plaintiff shall furnish certified copy of re-survey plan and the title deeds of the property to the Commissioner within one week.” 2. The Commissioner inspected the property with the assistance of the Surveyor and filed a report and plan. 3. The petitioner filed I.A.No.45 of 2010 to set aside the Commissioner's report and plan. On a perusal of the affidavit filed in support of I.A.No.45 of 2010, one gets the impression that the petitioner is mainly aggrieved by the payment of batta to the Commissioner. No specific point is mentioned in Exhibit P6 affidavit to set aside the Commissioner's report and plan. The OP(C) No.1938/2011 3 petitioner stated in the affidavit that the Commissioner should be directed to re-pay the Commissioner's batta. 4. Before the court below, the Commissioner and the Surveyor were examined. The court below considered all the relevant aspects of the case. Taking into account the submission made by the counsel and also the evidence of PWs 1 and 2, the court below held that no grounds are made out to set aside the Commissioner's report and plan. The finding was arrived at on analysing the facts and circumstances of the case and the records available before court. No grounds are made out for interference under Article 227 of the Constitution of India. It cannot be said that the order passed by the court below suffers from any illegality, impropriety or jurisdictional error. For the aforesaid reasons, the Original Petition is dismissed. K.T.SANKARAN JUDGE csl