IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 WP(C).No. 23769 of 2009(O) -------------------------- I.A.NO.8219/2008 IN OS.405/2005 of PRL.M.C.,ERNAKULAM .................... PETITIONER(S): ------------------------ 1. NANDANAN, S/O.LATE KITTU, AGED 64 YEARS, THOPPIL, EROOR DESOM, NADAMA VILLAGE, KANAYANNOOR TALUK. 2. KOMALAM, D/O.LATE KITTU, AGED 71 YEARS, THOPPIL, EROOR DESOM, NADAMA VILLAGE, KANAYANNOOR TALUK. BY ADV. MR.M.S.UNNIKRISHNAN RESPONDENT(S): --------------------------- 1. VIJAYALEKSHMI, AGED 54 YEARS, W/O.M.K.REGHU, VIJAY NIVAS, KODAMKULANGARA, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. 2. PADMAJA, D/O.LATE RAMAN MENON, KODAMKULANGARA, NADAMA VILLAGE, THRIPUNITHURA P.O. 3. RADHA, W/O.LATE PRASAD, DO. DO. 4. JAYA, W/O.RAJAN, DO. DO. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/08/2009 ALONG WITH WPC NO. 35959 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).Nos.23769 of 2009 - O and 35959 of 2008 - E --------------------------------- Dated this the 25th day of August, 2009 JUDGMENT W.P.(C).No.3769 of 2009 is filed by the defendants 1 and 2 in O.s.no.405 of 2005 on the file of the Munsiff Court, Ernakulam. First respondent in the writ petition has filed the above suit for a decree of permanent prohibitory injunction against petitioners and respondents 2 to 4, defendants, to restrain them from causing obstruction to the plaint B schedule path way and taking vehicle through that pathway. The challenge raised in the writ petition is against Ext.P7 order passed by the learned Munsiff declining the request of the petitioners 1 and 2, defendants, from remitting a commission report and plan prepared by the advocate commissioner in the case. The other writ petition, W.P.(C). No.35959 of 2008 is also filed by the first petitioner in the previous writ petition who has filed a separate suit, the sole plaintiff in respect of the very same B schedule path way as O.S.No.521 of 2005 before the same court seeking a decree of 23769 of 2009 - O and 35959 of 2008 - E 2 injunction against the plaintiff in the previous suit (O.S.No.405 of 2005), as the sole defendant in the suit. The challenge raised in the writ petition is against the order passed by the learned Munsiff declining the request of the petitioner (plaintiff in O.S.No.521 of 2005) for amending the plaint seeking a declaration of title having prescribed such title by adverse possession. For the sake of convenience, the petitioners in W.P. (C).No.23769 of 2009 and the petitioner in W.P.(C).No.35959 of 2008 is referred to as the petitioners and the first respondent in both the writ petitions the sole contesting respondent as the respondent. Though the orders challenged in the respective writ petitions arise from two suits as identical and common questions are involved, after being heard together, they are disposed by this common judgment. 2. In W.P.(C).No.35959 of 2008 notice being given the respondent has entered appearance. In the other, W.P.(C). No.23769/2009, having regard to the submissions made and taking note of the facts and circumstances presented, since the 23769 of 2009 - O and 35959 of 2008 - E 3 first respondent has already entered appearance notice to the other respondents is dispensed with. 3. Learned counsel for the petitioner submitted that the main grievance is against the order passed by the court below declining the request for setting aside the commission report, a copy of which is produced as Ext.P7 in W.P.(C).No.23769 of 2009. Learned Munsiff has relegated the enquiry on the objections raised to the commission report by the plaintiff for consideration at trial. According to the learned counsel, the procedure followed by the learned Munsiff was incorrect as the application moved by the defendant in O.S.No.405 of 2005 deserve either to be allowed or rejected. The amendment sought for by which alternate relief was claimed according to the counsel, depends upon the acceptance or refusal of the commission report. On the other hand, learned counsel for the respondent contended that there is no merit in the challenge raised against the respective orders passed by the learned Munsiff. Petitioner has filed the suit O.S.No.521 of 2005 claiming 23769 of 2009 - O and 35959 of 2008 - E 4 right over B schedule pathway as a coowner having obtained shares under a partition deed by which right over the pathway was also provided to sharers. After the commission report was filed, he moved an amendment application contending that he has perfected title by adverse possession over B schedule pathway if it is found that defendant has any right or title over that way. Such an alternate plea of adverse possession is not maintainable at the instance of a person claiming to be a coowner of the land and, further, in a case where other coowners are not parties to the suit, is the submission of the counsel for the respondent. 4. Perusing the order passed by the learned Munsiff declining the request of the petitioner for remitting the commission report, I find that whatever objections raised by the defendants in O.S.No.405 of 2005 to the commission report have been directed to be enquired into at the trial of the suit. The order passed by the learned Munsiff relegating consideration of the objections raised to the report and plan at the trial cannot be 23769 of 2009 - O and 35959 of 2008 - E 5 considered as improper and incorrect. Of course, if, after examination of the commissioner and surveyor, the above defendants in the suit are able to substantiate their objections, a disposal of the suit on merits can be proceeded with only on passing appropriate orders on the report and plan for curing the infirmity if any noticed. So much so, by relegating consideration of the objections at a later point of time, i.e., at the time of trial, no prejudice will be caused to the petitioner. That being so, the challenge raised against P7 order in W.P.(C).No.23769 of 2009 by which the learned Munsiff directed consideration of the objections raised to the commission report at the time of trial must fail. Having regard to the nature of controversy arising for adjudication, I direct the learned Munsiff to have the enquiry on the merit of the commission report if proper steps are taken by the defendants in O.S.No.405 of 2005 for examination of the advocate commissioner and the surveyor to substantiate their objections at the commencement of trial and before other witnesses are examined. 23769 of 2009 - O and 35959 of 2008 - E 6 Subject to the above observation, W.P.(C).No.23769 of 2009 is closed. So far as the challenge raised against the amendment application moved by the petitioner (plaintiff in O.S.No.521 of 2005), I find no impropriety or illegality in the order passed by the learned Munsiff. The legal principles applicable so far as claiming rights of a coowner over a property involved as adverted to by the learned Munsiff is beyond the pale of challenge. W.P.(C).No.35959 of 2008 lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-