IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 OP(C).NO. 294 OF 2010(O) ------------------------ OS.427/2006 OF PRL.M.C., KOLLAM PETITIONER ------------------- SHYLAJA, KAVADIVILA PADINJATTATHIL, NEERAVIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. BY ADV. SRI.SHABU SREEDHARAN RESPONDENT(S): ------------------------ 1. NIRMALA, PANAMOOTTIL THEKKATHIL, NEERAVIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. 2. KUNJUMOL, PANAMOOTTIL THEKKATHIL, NEERAVIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. 3. AMMINI, PANAMOOTTIL THEKKATHIL, NEERAVIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. 4. AJITH, PANAMOOTTIL THEKKATHIL, NEERAVIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. 5. GOPALAKRISHNAN, KAVADIVILA PADINJATTATHIL, NEERAVIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. 6. PADMALOCHANAN, PANAMOOTTIL THEKKATHIL, NEERAVIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. 7. KAMALA LOCHANAN, PANAMOOTTIL THEKKATHIL, NEERAVIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) NO.294 of 2010 ==================================== Dated this the 12th day of October, 2010 J U D G M E N T Defendant No.5 in O.S. No.427 of 2006 of the court of learned Principal Munsiff, Kollam is the petitioner before me. Respondent No.1 filed the suit initially for fixation of boundary of plaint A schedule stating that property of defendant No.1 is on the west, that of defendant Nos.2 and 3 is on the north, that of defendant Nos.4 and 5 is on the south and it is a pathway on the east of the said property. An Advocate Commissioner was appointed to identify the property and submit report. Commissioner with the assistance of a Surveyor measured property and submitted reports and plan (Ext.P2 series). From the report it was revealed that a portion of property claimed by respondent No.1 is in the actual possession of petitioner and additional defendant Nos.6 and 7. Thereon they were impleaded as additional defendant Nos.6 and 7 and the plaint was amended as one for declaration of title and recovery of possession of plaint B schedule. Petitioner filed Ext.P7, I.A. No.2579 of 2010 to issue O.P(C) No.294 of 2010 -: 2 :- a fresh commission and conduct fresh survey. It is the contention of petitioner that Advocate Commissioner effected measurements purely based on resurvey records and in fact there are mistakes in the resurvey for correction of which appropriate proceeding were initiated and the Village Officer had even given notice to the parties for the said purpose but that proceeding has been kept pending on account of pendency of the present suit. Learned Munsiff found that request for appointing a fresh commission cannot be allowed for reason that no attempt was made to set aside the existing report and plan and without setting aside the report and plan a fresh commission cannot be issued. It is also observed by the learned Munsiff that boundaries of the property are to be fixed on the basis of revenue records and not based on possession claimed by the petitioner. Advocate Commissioner measured the property as per resurvey plan with the help of Surveyor and reported boundaries of the property and prima facie learned Munsiff found no reason to hold that Commissioner has committed any procedural irregularity or omitted to note any matter in the report. It is contended by learned counsel that petitioner was impleaded in the suit only after Ext.P2 series were brought on record and hence petitioner did not get O.P(C) No.294 of 2010 -: 3 :- opportunity to get matters required by her to be ascertained through the Advocate Commissioner. 2. I must note that this is a suit where respondent No.1 is seeking a declaration of title and based on that, recovery of possession of the plaint B schedule. In a suit on title a properly measured plan is a must. For, it cannot be decided by surmises and conjectures. Hence it is for respondent No.1 to have a properly identified plan of the property (See Ambujakshy Amma and Another v. Gopi and Another -1989 [2] KLJ 705 at page 706). Any inadequacy or infirmity in the report and plan would only go to the disadvantage of respondent No.1 who seeks recovery of possession on the title claimed by him. If petitioner has a contention that resurvey records based on which measurement was allegedly done are not correct, it is open to the petitioner to prove the same in the course of trial. This Court in Sarojini v. Karthiyani Amma (2010 [1] KLT SN 17 (Case No.19) has pointed out that a commission report is after all only a piece of evidence the merit and value of which has to be appreciated with reference to the other materials to be tendered in the case. Whatever be the objections canvassed by petitioner to the report and plan of the Advocate Commissioner, an order O.P(C) No.294 of 2010 -: 4 :- passed by the trial court as to whether the report and plan are to be accepted or set aside or remitted for fresh consideration for further clarification cannot be challenged before this Court invoking its supervisory jurisdiction unless it is shown the order passed thereof suffered from such infirmity which if not corrected will result in grave injustice. 3. Having heard learned counsel for petitioner and going through the order under challenge I do not find any such grave injustice in Ext.P8, order warranting interference under Article 227 of the Constitution. But I make it clear that it is open to the petitioner to adduce evidence in support of her contention that resurvey records itself are not correct and respondent No.1 has no title over the disputed property. With the above observation Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv