IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 19945 of 2010(O) -------------------------- OS.56/1996 of MUNSIFF COURT, IDUKKI .................... PETITIONER(S): --------------- PEETHAMBARAN, S/O.LATE SRI.KANDA, AGED 59 YEARS, THUMARAKALAYIL HOUSE, MANGAPPARA, KONNATHADY VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.K.S.SUMEESH RESPONDENT(S): --------------- 1. KARUNAKARAN, S/O.LATE KANDA, AGED 56 YEARS, THUMARAKALAYIL HOUSE, MANGAPPARA KARA, KONNATHADY VILLAGE, UDUMBANCHOLA TALUK. PIN 685554. 2. SHAJI, S/O.KARUNAKARAN, AGED 30 YEARS, THUMARAKALAYIL HOUSE, MANGAPPARA KARA, KONNATHADY VILLAGE, UDUMBANCHOLA TALUK. PIN 685554 . 3. SHIBU, S/O.KARUNAKARAN, AGED 26 YEARS, THUMARAKALAYIL HOUSE, MANGAPPARA KARA, KONNATHADY VILLAGE, UDUMBANCHOLA TALUK. PIN 685554 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19945 of 2010 -------------------------------------- Dated this the 28th day of June, 2010. JUDGMENT Plaintiff in O.S.No.56 of 1996 of the court of learned Munsiff, Idukki is the writ petitioner before me aggrieved by the order of learned Munsiff refusing to set aside report and plan prepared by the Advocate Commissioner. Petitioner sued respondent/defendant for recovery of possession of plaint B schedule claiming that he is the owner in possession of 1.60 acres and respondent trespassed into a portion which is scheduled in the plaint as B schedule. Learned Munsiff pointed out that Advocate Commissioner with the assistance of Taluk Surveyor measured the property and identified plaint A and B schedules as per document No.1779 of 1986 (relied on by the petitioner and relevant survey plan). Commissioner inspected the property with the assistance of the Taluk Surveyor on the basis of the said assignment deed and pattayam No.874 in respect of 4.79 acres in L.A.No.2 of 1964, land acquisition sketch, mahazar and resurvey plan and sketch of re-survey Nos.141/3 and 141/4. The entire property including suit property was measured. Possession of petitioner as per document No.1779 of 1986 and L.A.No.2 of 1964 is 1.16 acres (as against claim of 1.60 acres by the petitioner). But the Commissioner reported that as per measurement based on re-survey sketch petitioner is in possession of 1.22 acres. Advocate Commissioner reported that as per measurement with reference to survey plan, resurvey plan and documents in respect of the WP(C)No.19945/2010 2 property of respondent it is found that he is not in possession of any land belonging to the petitioner. According to the Advocate Commissioner he was not able to identify plaint B schedule in the way claimed by petitioner. In the circumstances petitioner wanted to set aside the report and plan. Court below observed that merely because an affidavit is filed alleging omissions and commissions on the part of Commissioner report submitted by him cannot be set aside and that in the course of trial if on evidence it is found that report and plan are not acceptable it is open to the petitioner to request for obtaining a fresh report and plan at that time and accordingly, learned Munsiff dismissed the application. That is under challenge in the Writ Petition. 2. Learned counsel states that unlike in cases where merely because an affidavit of the party challenging the report of Advocate Commissioner it may not be necessary to set aside the report and plan here is a case where the prayer itself is for recovery of plaint B schedule and Commissioner states that he was not able to identify plaint B schedule. But report of the Advocate Commissioner has to be read as a whole. Commissioner stated that since the documents concerning properties (on the south and east belonging to other persons) adjoining the suit property were not available he was not able to measure that portion. Learned Munsiff has not foreclosed right of petitioner but has reserved right of petitioner to request the court to set aside the report and plan if on evidence it is found to be defective. Since that right of petitioner is WP(C)No.19945/2010 3 reserved it is open to him in the course of trial after adducing evidence to convince the court that report and plan are defective, has to be set aside and another Commissioner is to be appointed or the very same Commissioner has to be directed to produce a fresh report and plan. In such circumstances it is not necessary for this Court to interfere with the impugned order. Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks