IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 5534 of 2007(H) ------------------------- AGAINST THE ORDER IN IA 36/2007 IN OS.324/2000 of MUNSIFF COURT,ATTINGAL .................... PETITIONER: --------------- KARUNAKARAN, S/O.KRISHNAN, PLAVILA VEEDU, EDAPAZHANADU DESOM, KILIMANNOOR VILLAGE. BY ADV. SRI.M.R.RAJESH SMT.BINDHYA JOSE RESPONDENTS: --------------- 1. SADASIVAN (*DIED), SIKESH MANDIRAM, EDAPAZHANADU DESOM, KILIMANNOOR VILLAGE. *2. SHILESH KUMAR, S/O SADASIVAN SILEESH MANDIRAM, EDAPAZHANADU DESOM KILIMANNOOR VILLAGE *3. SHYAM DUTH, S/O SADASIVAN SILEESH MANDIRAM, EDAPAZHANADU DESOM KILIMANNOOR VILLAGE *4. SILEESH KUMAR, S/O SADASIVAN SILEESH MANDIRAM, EDAPAZHANADU DESOM KILIMANNOOR VILLAGE (* - ADDITIONAL RESPONDENTS 2 TO 4 IMPLEADED AS PER ORDER DTD. 13.08.2009 IN I.A.NO.9050 OF 2009) ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.KIRAN SANKAR SRI.R.S.KALKURA FOR ADDL.R2 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5534 of 2007(H) APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : COMMISSION REPORT AND PLAN IN OS.324/2000 of MUNSIFF COURT,ATTINGAL EXHIBIT P2 : I.A.NO.953 OF 2005 EXHIBIT P3 : DEPOSITION OF THE COMMISSIONER IN OS.324/2000 of MUNSIFF COURT,ATTINGAL EXHIBIT P4 : DEPOSITION OF the SURVEYOR EXHIBTI P5 : DEPOSITION OF THE PETITIONER EXHIBIT P6 : ORDER DTD. 05.12.2006 ON I.A.NO.953 OF 2005 EXHIBIT P7 : ORDER DTD. 12.01.2007 ON I.A.NO.36 OF 2007 IN OS.324/2000 RESPONDENTS' EXHIBITS: NIL True CopyU P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.(C).No. 5534 of 2007 --------------------------------------- Dated this 13h day of July, 2010 JUDGMENT This writ petition is preferred by petitioner/plaintiff in challenge of Exts.P6 order dismissing his application to set aside Exts.C1 and C2, report and plan prepared by CW.2, Advocate Commissioner and Ext.P8, order dismissing the application for review of Ext.P6, order. 2. The suit is for fixation of boundary of plaint A to D schedule items. For the said purpose learned Munsiff appointed an Advocate Commissioner with the assistance of a Surveyor. The Commissioner after measurement of the properties with the assistance of Surveyor submitted Exts.C1 and C2, report and plan. That report and plan were objected by the petitioner on the ground that properties were not measured with reference to the old and resurvey plans and the document of title relied on by respondent. It is stated that datas given in Ext.C2, plan are not sufficient to ascertain extent of plaint A to D schedule properties in that, the diagonal measurements of plaint A to D schedule properties are not given. There are other infirmities also to the report and plan, according to the petitioner. Application was W.P.C.No.5534 of 2007 : 2 : opposed by respondent/defendant. The Surveyor and Advocate Commissioner were examined as Cws.1 and 2, respectively. Based on the evidence learned Munsiff as per Ext.P6, order found that the objection raised are not sustainable and consequently dismissed Ext.P2, application (I.A.No.953 of 2005) stating that there is an error apparent on the face of record in that relevant materials brought out in the evidence of CWs.1 and 2 was not considered or has been wrongly considered. Petitioner filed Ext.P7, application (I.A.No.36 of 2007) for review of Ext.P6, order. Learned Munsiff considered that application and held that there is no ground to review Ext.P6, order and dismissed Ext.P7, application vide Ext.P8, order. Hence this writ petition. Learned counsel has asserted once again before me the grounds set up by petitioner in Ext.P2, application to set aside Exts.C1 and C2. Learned counsel has also taken me through Exts.C1 and C2 and evidence of CWs.1 and 2. Learned counsel for respondent contend that what was requested was to identity the suit properties which the Advocate Commissioner and Surveyor have done. It is also argued by learned counsel that the mere fact that Advocate Commissioner was not having that much expertise in the matter of survey and accordingly gave evidence cannot result in setting aside Exts.C1 and C2 which is otherwise acceptable in view of evidence given by CW1, the Surveyor. W.P.C.No.5534 of 2007 : 3 : 3. According to the petitioner plaint schedule items are comprised in Sy. No.4 and property of respondent is comprised in Sy. No.5. In Ext.C2, plan property of respondent is shown as comprised in Sy. No.2 but, CW1, surveyor stated that the suit property is comprised in old Sy. No.4. CW1 stated that properties were measured as per old Sy. Plan but CW2, Commissioner stated that resurvey plan was perused but not the old Sy. Plan. CW2 is sure that he had not instructed the Surveyor to measure the properties as per the Re. Sy. Plan. CW2, the Commissioner stated that he has not seen the document of title of respondent though it was asked for. He does not know extent of property belonging to the respondent. Evidence of CW1, surveyor shows that respondent has more extent than referred to in his document of title. He stated that he had perused document of title of respondent. But he could not say how many of documents of respondent he had examined. When it was suggested to him that he had not perused any document relating to the property of respondent, he could not deny that. Thus, going by the evidence of Cws.1 and 2 it is clear that property of respondent was not measured with reference to the document of title of the respondent. There also appears to be some controversy regarding the old Sy. No. in which parties hold the property. CW1 has stated that extent of property of respondent W.P.C.No.5534 of 2007 : 4 : as per the re-survey is not stated in Ext.C1. CW1 has also not denied that extent of property reported by him exceeded the extent stated in his document of title. He would say that he did not think it necessary to ascertain extent of property of respondent as per the document of title. I must bear in mind that request made by petitioner in Ext.P2, application was to identify the properties (the suit property as well as the property of respondent) with reference to the survey records (which includes the old and resurvey records), documents of title of the parties and also taking into account lie of the property. In a suit for fixation of boundary what is required is to fix the boundary of the properties and not merely to fix the survey boundary line. Relevant documents of title also must be made use of. Boundary could be fixed only after settling all disputes regarding title and possession. 4. It is also seen from Ext.C2 and evidence of CW1 that the diagonal measurements of A, C and D items of plaint schedule are not given which according to the petitioner is essential for ascertaining extent of the said items. When CW1, Surveyor was questioned about that he stated that he has not shown the diagonal measurements of A, C and D items because the said properties were not lying in different taks. Having regard to these aspects I am inclined to think that measurement of the W.P.C.No.5534 of 2007 : 5 : properties with reference to old and resurvey records as well as documents of title relied on by both parties is necessary. 5. Having regard to the facts and circumstances it is only appropriate to direct the Advocate Commissioner to measure the properties with reference to the old and resurvey records, documents of title of both parties and the lie of properties and submit report and plan. The question whether which of the plans is to be accepted is a matter which the court below has to decide at the appropriate stage. Resultantly this writ petition is allowed in the following lines: (i) Exts.P6 and P8, orders are set aside and Exts.P2 and P7, applications are allowed to the following extent. (a) Advocate Commissioner is directed to identify the properties of petitioner and respondent with the assistance of a Surveyor with reference to the old and resurvey records, documents of title relied on by both parties and the lie of properties. Advocate Commissioner also shall give necessary datas in the plan to identify the extent of the property belonging to the parties. (b) Court below shall decide whether it is Exts.C1 and C2 or report and plans Advocate Commissioner submits W.P.C.No.5534 of 2007 : 6 : pursuant to this order which is more accurate and relevant for deciding the controversy involved in the suit. (c) As far as possible court below shall appoint the same Advocate Commissioner for inspection of property and to submit report and plans. (THOMAS P JOSEPH, JUDGE) Sbna/-