IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 26758 of 2007(I) -------------------------- AGAINST THE ORDER IN IA 455 2007 IN OS.251/1996 of PRL.M.C.,KOZHIKODE-II .................... PETITIONER(S): --------------- CHALIYIL AYYAPPAN, AGED 67 YEARS, S/O.KARIYATHAN, CHALIYIL HOUSE, THIRUVAMBADI AMSOM AND DESOM, KOZHIKODE. BY ADV. SRI.MANJERI SUNDERRAJ SRI.B.PREMNATH (E) RESPONDENT(S): --------------- 1. PULLUKATTIL THOMAS, AGED 58 YEARS, S/O.PHILIP, PULLUKATTIL, KONKOTTIL, THIRUVAMBADI AMSOM AND DESOM, KOZHIKODE. 2. THANKA, AGED 47 YEARS, W/O.KRISHNANKUTTY, KONKOTTIL, THIRUVAMBADI AMSOM AND DESOM, KOZHIKODE. 3. KRISHNANKUTTY, FATHER'S NAME NOT KNOWN, KONKOTTIL, THIRUVAMBADI AMSOM AND DESOM, KOZHIKODE. ADV. SRI.P.J.MATHEW FOR R2 & 3 SRI.K.B.ARUNKUMAR FOR R2 & 3 SRI.R.BINDU (SASTHAMANGALAM) FOR R1 SRI.PRASANTH M.P FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF PLAINT IN O.S.NO.251/1996 OF MUNSIFF COURT, II(P), KOZHIKODE EXT.P2 TRUE COPY OF ADVOCATE COMMISSIONER's REPORT AND PLAN DATED 01-10-07 EXT.P3 TRUE COPY OF AFFIDAVIT AND PETITION IA.NO.455/07 DTD. 23-1-07 TO REMIT COMMISSIONER'S REPORT EXT.P4 TRUE COPY OF ORDER OF MUNSIFF COURT II(P), KOZHIKODE IN I.A.NO.455/07 /True Copy/ PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 26758 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January , 2008 JUDGMENT Under challenge in this writ petition under Article 227 of the Constitution is Ext.P4 order passed by the learned Munsiff in I.A.No.455/07 filed by the writ petitioner, who was the plaintiff. 2. Heard Sri.Majeri S.Sunder Raj, learned counsel for the petitioner, Sri.R.Bindu, learned counsel for respondents 1 and 2 and Sri.P.J.Mathew, learned counsel for the third respondent. Sri.Majeri.S.Sunder Raj would submit that Ext.P4 is bad and the same contains apparent errors. According to the learned counsel, the learned Munsiff was unable to construe the scope of the suit properly. The suit was not for injunction as the learned Munsiff states. The suit was later amended as one for fixation of boundary and for recovery of possession. The impugned order is issued by the learned Munsiff on the premise that no objection had been filed by the petitioner to the Commissioner's report already available. Even that premise is wrong. Objection had been filed by the petitioner to the Commissioner's report, WPC.No.26758/07 2 so submitted Sri.Sunder Raj. 3. Even though the submissions of Sri.Sunder Raj were opposed by the learned counsel for the respondents, they would concede that statement of objections had been filed by the petitioner to the Commissioner' s report. Ext.P2 is the Commissioner's report and plan regarding which the petitioner filed I.A.No.455/07. According to Sri.Majeri S.Sunder Raj, Ext.P2 does not identify the boundaries of the property. 4. I do not propose to go into the merits of the matter. One thing is clear. The suit was not for injunction simpliciter. Instead, it was for fixation of boundary and for recovery of possession. Another thing is also clear. The observation of the learned Munsiff that the petitioner had not filed objection to Ext.P2 is wrong. He had actually filed objection. Under the above circumstances, I feel that the learned Munsiff should have a reconsideration of I.A.No.455/07. Accordingly, I set aside Ext.P4 and direct the learned Munsiff to hear all parties again and take a fresh decision on I.A.No.455/07. Fresh decision as directed WPC.No.26758/07 3 above shall be taken by the learned Munsiff at the earliest and at any rate within one month of receiving a copy of this judgment. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.26758/07 4