IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 OP(C).No. 709 of 2011(O) ------------------------ AGAINST THE ORDER IN IA 2209/2010 IN OS.573/2003 of ADDL.MUNSIFF COURT,KOCHI .................... PETITIONER: ------------------ T.S.SALI, S/O.T.A.SUKUMARAN, THAIPARAMBIL HOUSE, EDAVANAKKAD, VYPIN. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- A.K.PRAKASAN, S/O.KOCHUKANDAN, AMMANCHERRY HOUSE, SYED MOHAMMED ROAD, EDAVANAKKAD P.O., ERNAKULAM-682 504. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------ O.P.(Civil) No.709 of 2011 ------------------------------------- Dated this the 21st day of February, 2011 JUDGMENT The petitioner, who is the second plaintiff in O.S.No.573 of 2003 on the file of the court of the Additional Munsiff of Kochi, is aggrieved by the order dated 7.1.2010 in I.A.No.2209 of 2010. 2. The suit was filed for fixation of boundary and for recovery of possession. The trial court decreed the suit as per Exhibit P1 judgment dated 26.9.2007. The defendant filed A.S.No.40 of 2008 before the Sub Court, Kochi, challenging the judgment and decree of the trial court. The appellate court set aside the judgment and decree of the trial court and the case was remanded to the trial court. The appellate court issued certain specific directions. The appellate court thought that the trial court should have O.P.(C) No.709/2011 2 allowed I.A.No.101 of 2007 filed by the defendant to measure the property in accordance with survey and in the manner mentioned in the application. The appellate court held thus : "The learned counsel of appellant submitted that there is no commission report noting the facts sought to be ascertained in I.A.No.101 of 2007. In that application defendant's property was not measured and the common boundary not fixed on measuring plaintiffs' and defendant's property. Therefore, that view of the court below is erroneous. I found merit in that submission. There is no report filed noting the points sought in I.A.No.101/07. Another finding of the court below is that the boundaries to be fixed in the suit is that of the property of the plaintiffs and for that purpose the measurement of the property of defendant is not necessitated. Further court below is of opinion that earlier commissioner has not expressed any opinion that to ascertain the boundaries of plaint A schedule property measurement of property of O.P.(C) No.709/2011 3 defendant is needed. The conclusion of the court below is that for the above reason commission application filed by the defendant is without any merit. I have gone through I.A.No.101/07, the counter filed to it by the plaintiff and the detailed order of the court below. I am of the view that for fixing the common boundary of plaintiffs' and defendant's property measurement of plaintiffs' property alone is not sufficient and the property of both parties are to be measured. Since there is boundary dispute between parties with respect to their common boundary, I am of the view that court below went wrong in dismissing the application I.A.No.101/07. For a complete and effective adjudication of dispute between parties, measurement of properties of plaintiff and defendant is highly necessary. Particularly in view of the fact that plaintiff sought for recovery of possession of 'B' schedule. Therefore, I found that order of court below in I.A.No.101/07 is not sustainable and I set aside the order of court below in O.P.(C) No.709/2011 4 I.A.No.101/07 dated 25.1.2007. For the reasons stated above and considering the dispute between parties, I allowed I.A.No.101/07 with a direction to court below to appoint commissioner to measure out the property of defendant as well, as prayed for in I.A.No.101/07." 3. The operative portion of the judgment of the appellate court reads as follows : "In view of the finding in Point Nos.1 and 2, appeal allowed and the judgment and decree of court below in O.S.No.573/03 dated 26.9.2007 is set aside and remanded to court below for fresh disposal affording parties to adduce fresh evidence. The order of the court below dismissing I.A.No.101/07 is set aside and is allowed. Court below is directed to appoint a commissioner, if possible, the earlier commissioner to note the points sought to be ascertained in I.A.No.101/07. The parties are at liberty to adduce fresh O.P.(C) No.709/2011 5 evidence in support of their respective claims after obtaining the commission report in I.A.No.101/07. Court below is directed to dispose of the suit afresh at the earliest at any rate within six months from the date of receipt of the judgment of this court before that court." 4. In I.A.No.101 of 2007, the defendant had specifically sought the assistance of the Taluk Surveyor for measuring the property. After remand, the defendant filed I.A.No.2209 of 2010 for issuing certain directions to the Advocate Commissioner on the points mentioned in the application. The application was opposed by the plaintiffs. They contended that the prayer in the application is against the scope of the remand order. However, the trial court allowed I.A.No.2209 of 2010. 5. Sri.B.Krishna Mani, the learned counsel appearing O.P.(C) No.709/2011 6 for the petitioner relied on the judgment in Achuthan Nair vs. Raman and others (1979 KLT 119). 6. The court below considered the application and the objections and it was held that the directions sought for are not against the terms of the remand order. Cogent reasons have been stated by the court below to arrive at the conclusion. On a perusal of the appellate judgment and on a perusal of I.A.No.101 of 2007 and I.A.No.2209 of 2010, I am of the view that the court below was fully right in arriving at the conclusion. No grounds are made out for interference under Article 227 of the Constitution of India. The Original Petition is accordingly dismissed. K.T.SANKARAN JUDGE csl