IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 WP(C).No. 6480 of 2007(U) ------------------------- AGAINST THE ORDER DATED 02.01.2007 IN I.A. NO. 24/2006 IN OS.385/2003 of MUNSIFF COURT, VAIKOM .................... PETITIONER: --------------- OMANA, W/O. RAGHAVAN, KUZHIMALAYIL, MARUVANTHURUTHU P.O., KULASEKHARA MANGALAM, VAIKOM. (SINCE THE ORIGINAL PLAINTIFF DIED, PETITIONER WAS IMPLEADED AS PER ORDER IN I.A.NO.198/2004). BY ADV. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL SMT.RAKHI K.KUMAR RESPONDENT: --------------- SOMANATHAN, SMITHA BHAVAN, NADUVILA VILLAGE, VAIKOM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== W.P.(C) No. 6480 of 2007 ========================== Dated this the 17th day of October, 2008. JUDGMENT The petitioner is the plaintiff in O.S. No. 385 of 2003 on the file of the Munsiff's Court, Vaikom. The said suit was filed for fixing the southern boundary of the plaint schedule property, to declare the plaintiff's title over the plaint schedule property and to recover the same after setting aside the gift deed No. 3173/99 of SRO Vaikom. 2. The trial court issued an Advocate Commissioner. The Advocate Commissioner filed his report and plan with the assistance of the Taluk Surveyor. Thereafter, the petitioner filed I.A. No. 24 of 2006 to remit the Commissioner's report and plan for effecting certain corrections. In that I.A., the Taluk Surveyor was examined as PW1. Going by the Commissioner's report and plan, the property which the plaintiff is entitled to is shown as having an extent of 7.182 cents and identified as plot KLMNPQK. The Taluk Surveyor examined as PW1 stated in his chief examination that the property which the plaintiff is entitled to is W.P.(C) No. 6480/2007 : 2: plot KLMNPQK. To the suggestion put on behalf of the plaintiff that on a proper calculation the extent of the plaintiff's property would come to 6.869 cents, PW1 answered in the affirmative. Based on the said answer given by PW1, it was contended before the court below that the report and plan were liable to be remitted to the Commissioner. The court below was not inclined to accede to the same for the reason that the Taluk Surveyor was giving prevaricatory answers during his examination. That court accordingly as per Ext.P1 order dated 02.01.2007 dismissed I.A. No. 24 of 2006. It is the said order which is assailed in this writ petition. 3. It is true that the Taluk Surveyor when examined as PW1, has answered in the affirmative the suggestion put on behalf of the plaintiff that on a proper calculation, the plaintiff's property will have an extent of 6.869 cents. It is not known as to on what basis the said suggestion was put to PW1. According to the plaintiff, the plaint schedule property has an extent of 9 cents. But, going by the report and plan submitted by the Advocate Commissioner, with the aid of the Taluk Surveyor, after W.P.(C) No. 6480/2007 : 3: deducting the portions sold away from this 9 cents, what remains is only plot KLMNPQK having a total extent of 7.182 cents. In the absence of any reliable materials on record, the court below was not inclined to allow the said application to remit the report and plan of the Commissioner. The flexible answers cunningly given by the Taluk Surveyor cannot tilt the scales. I do not find any good reason to interfere with Ext.P1 order. Of course, the petitioner can summon the Commissioner as a witness in the case and in case he is able to demonstrate that the report and plan of the Commissioner suffer from mistakes and require corrections, the impugned order will not preclude the plaintiff from doing so. But it shall be done only during the trial of the suit. This writ petition is accordingly dismissed. Dated this the 17th day of October, 2008. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 6480/2007 : 4: W.P.(C) No. 6480/2007 : 5: