IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 26556 of 2010(O) --------------------------------------- OS.564/2007 of PRL.MUNSIFF COURT,KOZHIKODE-II .................... PETITIONER(S): PLAINTIFF ------------------------------------- BALAN, S/O.KUNNATHU BAPU AGED 65 YEARS OTTAPPILAKKIL, POOLAKKODU AMSOM. PERUMANNA DESOM, KOZHIKODE TALUK BY ADV. SRI.NIRMAL. S RESPONDENT(S): DEFENDANT --------------------------------------------- 1. BALAN @ VELAYUDAN NAMBIAR S/O.NARAYANIAMMA, AGED 55 YEARS POOKAKKODU AMSOM, KOZHIMANNA DESOM KOZHIKODE TALUK PIN. 673 506. 2. BINEESH S/O.VELAYUDHAN NAMBIAR, AGED 26 YEARS PALAKKAMANNIL, POOLAKKODU AMSOM KOZHIMANNA DESOM,KOZHIKODE TALUK, PIN 673 506. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== W.P(C) No.26556 of 2010 ==================================== Dated this the 04th day of October, 2010 J U D G M E N T Plaintiff in O.S. No.564 of 2007 of the court of learned Munsiff-II, Kozhikode is the petitioner before me challenging Ext.P7, order refusing to set aside Ext.P5, report and plan. Petitioner, claiming to be in possession and enjoyment of the suit property filed the suit for prohibitory injunction to restrain respondents from trespassing into that property. Respondents contended that there is a Serpant grow and that attempt of petitioner is to take possession of that Serpant grow under the guise of the suit for prohibitory injunction. Advocate Commissioner inspected the property and submitted report (Ext.P3). Respondents were not satisfied with that report and wanted certain further matters to be ascertained by the Commissioner and on their request the same Commissioner again visited the property and submitted Ext.P5, report and plan. Petitioner being aggrieved by the said report and plan filed I.A. No.315 of 2010 for relief as first above stated. It was contended before the learned Munsiff that the W.P(C) No.26556 of 2010 -: 2 :- reports contradict each other on material particulars, position of the Serpant grow shown by the Advocate Commissioner in Ext.P5, substantially varied and contradicted the place of Serpant grow stated in Ext.P3, report. It is also contended that the Advocate Commissioner should have prepared a plan and not merely a sketch (appended to Ext.P5). Learned Munsiff rejected the contentions and dismissed I.A.No.315 of 2010. Hence this Writ Petition invoking supervisory jurisdiction under Article 227 of the Constitution. It is contended by learned counsel that learned Munsiff has not appreciated the contentions advanced by petitioner in the correct perspective and was not correct in holding that there was no contradiction in the reports. I have been taken through Exts.P3 and P5, reports and the sketch appended to the latter report. 2. 'Contradiction' that learned counsel points out is that while in Ext.P3, in paragraph 3, Advocate Commissioner stated position of the Serpant grow as towards south eastern corner of the property, in Ext.P5, report and the sketch appended thereto the Serpant grow is shown as situated towards eastern side of the suit property. It is contended by learned counsel that Advocate Commissioner had no authority to locate position of the W.P(C) No.26556 of 2010 -: 3 :- Serpant grow in Ext.P5, report and sketch for the reason that she was not required to do so in the application which resulted in Ext.P5, report. 3. In Ext.P3, report in paragraph 3 it is stated that the Serpant grow is situated on the south-eastern corner of the suit property whereas Ext.P5, report and sketch appended thereto shows that Serpant grow as situated on the eastern portion of the suit property. After all report of the Advocate Commissioner is only a piece of evidence and is not itself binding on the court. It is open to the parties to adduce evidence in support of their respective contentions. If petitioner has a contention that Advocate Commissioner was not called upon at the time of her second visit to ascertain the location of Serpant grow and that act of the Advocate Commissioner is beyond the power conferred on her it is open to the petitioner to urge that contention before the learned Munsiff at the time of trial and final hearing. 4. Other objection raised is that Advocate Commissioner has not prepared a plan and what is prepared is only a rough sketch. It is not pointed out that Advocate Commissioner was called upon to prepare a plan with the aid of a Surveyor. As such she cannot be faulted for not preparing a plan. W.P(C) No.26556 of 2010 -: 4 :- 5. When grave injustice is committed by the court in refusing to set aside the report this Court is required to interfere under Article 227 of the Constitution. As I stated parties are to adduce evidence and it is open to them to point out at the trial even the alleged contradictions in the reports. I also stated that if Advocate Commissioner has acted beyond the power conferred on her it is open to the petitioner to urge before learned Munsiff that the said act is not binding on the parties and cannot be accepted. In the circumstances I do not find reason to interfere with the impugned order. Writ Petition is closed without prejudice to the right of petitioner to challenge the reports at appropriate stage as provided under law. THOMAS P. JOSEPH, JUDGE. vsv