IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 WP(C).No. 30598 of 2008(P) -------------------------- AGAINST THE ORDER DATED IN EP 200/2006 IN OS.344/1991 of MUNSIFF COURT, THALASSERY .................... PETITIONER(S): --------------- 1. P.M. AYISAKUNHI, W/O.ABDUL SALAM, RESIDING AT CHEMBILODE, CHALA KIZHAKKEKARA, KANNUR DT. 2. HAJIRA, D/O.P.M. AYISAKUNHI, -DO- 3. SERBA, D/O. P.M. AYISAKUNHI, -DO- 4. SIBATH, S/O.P.M. AYISAKUNHI, -DO- BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.KAUSER EDAPPAGATH RESPONDENT(S): --------------- 1. P.K. AYISUMMA, D/O. ABDUL SALAM, RESIDING AT MADATHILPARAMBA, CHEMBILODE, CHALA KIZHAKKEKARA, KANNUR DT. 2. P.K. NABEESA, D/O. ABDUL SALAM, -DO- 3. P.K. SALI, S/O. ABDUL SALAM, -DO- ADV. SRI.R.SURENDRAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.30598/08 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE DECREE IN O.S.NO.344/1991 ON THE FILE OF THE MUNSIFF COURT, THALASSERY DATED 29.1.1994. EXT.P2: COPY OF THE JUDGMENT IN O.S.NO.344/1991 ON THE FILE OF THE MUNSIFF OF THALASSERY DATED 29.1.1994. EXT.P3: COPY OF THE ORDER IN E.P.NO.258/00 IN O.S.NO.344/91 ON THE FILE OF THE MUNSIFF OF THALASSERY. EXT.P4: COPY OF THE ACCOUNT STATEMENT. EXT.P5: COPY OF THE JUDGMENT IN W.P.(C).19744/03 DATED 25.1.2005 OF THE HONOURABLE COURT. EXT.P6: COPY OF THE COMMISSION REPORT. EXT.P7: COPY OF THE PLAN. EXT.P8: COPY OF THE AFFIDAVIT FILED BY PETITIONERS. EXT.P9: COPY OF THE PETITION. EXT.P10: COPY OF THE ORDER IN E.A.NO.76/08 IN EP.NO.208/06 IN O.S.NO.344/91 DATED 14.8.2008 ON THE FILE OF THE MUNSIFF COURT, THALASSERY. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.30598 OF 2008 (P) ----------------------------------- Dated this the 7th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to issue a certiorari or such other writ quashing Ext.P10 ii. to issue a writ of mandamus or such other writ or order directing the Munsiff Court of Thalassery to allow Ext.P9 application. 2. Petitioners are plaintiffs 1, 2, 4 and 5 in O.S.No.344 of 1991 on the file of the Munsiff Court, Thalassery and the respondents are the defendants. Suit was one for fixation of boundary and also for injunction, and it was decreed in favour of the petitioners/plaintiffs. Admittedly, the plaintiffs' property has a common boundary with the defendants on its WPC.30598/08 2 southern side. The demarcating line separating the properties was identified on the trial side by deputing an Advocate Commissioner and the report and plan prepared by the Commissioner being accepted by the court, decree was passed stating that C2 plan shall form part of the decree. C2 plan graphically delineates the boundary separating the two properties, that of the plaintiffs and the defendants. On that boundary line, admittedly, a well is also situated. After passing of the decree, the petitioners/plaintiffs filed the execution petition in which they sought for fixation of the boundary as made under C2 plan, determining the plaint property, and its identification on all four sides as spelt out in the plaint. An Amin was deputed by the court on the request made in the execution petition for fixing the boundary of the decree schedule property. Fixation made by the Amin was objected to by the judgment debtor, filing a writ petition before this Court. This Court vide Ext.P5 judgment found that the Amin was incompetent to carry out the functions of fixing the boundary and the court below was directed to depute an Advocate Commissioner for the purpose, and if possible, by WPC.30598/08 3 the same commissioner, who had been appointed on the trial side and who prepared C2 plan. Pursuant to such directions, the very same Commissioner was deputed, who after conducting local inspection and carrying out the measurements filed a report and plan with the assistance of a Taluk Surveyor. In the report and also plan, the Commissioner gave details of some changes, which had occurred in the property after his last visit stating that in the second visit, it was noticed that a road was passing through the northern side of the plaintiffs property. He also expressed some views that portion of the property and also another portion in the northern western corner were not under the possession of the plaintiffs. Though the petitioners/plaintiffs have filed objections to the report and plan prepared by the Advocate Commissioner, the learned Munsiff after hearing both sides, accepted the report and plan vide Ext.P10 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. WPC.30598/08 4 3. I heard the counsel on both sides. The decree which was passed in the suit was only for fixation of boundary and also for injunction. Fixation of boundary sought for by the plaintiffs/decree holders had already been done on the trial side itself with the decree granted accepting Ext.C2 plan. In fact, nothing more with respect to fixation of boundary arose for consideration in execution. Deputing of the Amin or Advocate Commissioner again for fixation of the boundary, in the given facts of the case, was not at all necessary. The decree passed is binding on both sides. If at all there is any interference with the plaint property despite the order of injunction passed by the defendants or judgment debtors, it is open to the decree holders/plaintiffs to take appropriate steps as provided by law. So far as the views expressed by the Advocate Commissioner and also by the court in Ext.P10 order with respect to the decree holder not being in possession the entire property in view of the features evidencing the existence of a road etc. I find such conclusion that the plaintiff is out of possession was uncalled for when there was nothing more to be executed under the decree in the present WPC.30598/08 5 proceedings. Observations made by the court under Ext.P10 order, I make it clear will not cause any prejudice to the plaintiffs in seeking appropriate reliefs as provided by law. Any further continuance of the execution proceedings will be only an exercise in futility and the court below is directed to close the proceedings taking note of the observations made by this Court as above. Subject to the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp