IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 26905 of 2009(O) -------------------------- OS.3761/2003 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER: --------------- MATHAI, S/O. CHALAKAL ANTONY, POTTIMADA DESOM, PEECHI VILLAGE, THRISSUR TALUK, REP. BY POWER OF ATTORNEY HOLDER JOHNSON, S/O. CHALAKAL MATHAYI. BY ADV. MR.T.C.SURESH MENON MR.C.A.ANOOP RESPONDENTS: --------------- 1. PATHUMMA, W/O. BEERANKUTTY, MOOCHIKKATTTIL HOUSE, VANIYANPARA, POTTIMADA. 2. HUSSAIN, S/O. BEERANKUTTY, MOOCHIKKATTIL HOUSE, PANNIYANKARA.P.O. PALAKKAD. 3. ABOOBACKER, S/O. BEERANKUTTY, MOOCHIKKATTIL HOUSE, PANNIYANKARA.P.O., PALAKKAD. 4. ASIYA HAMSA, VALEKKARAN HOUSE OLLUKKARA.P.O., THRISSUR. 5. ABDULRAHIMAN, S/O. BEERANKUTTY MOOCHIKKATTIL HOUSE, PANNIYANKARA.P.O., PALAKKAD. 6. SUBAIR, S/O. BEERANKUTTY, MOOCHIKKATTIL HOUSE, VANIYANPARA.P.O., POTTIMADA, THRISSUR. 7. RASHEEDA, MOOCHIKKATTIL HOUSE VANIYANPARA.P.O., POTTIMADA, THRISSUR. 8. MUJEEBRAHMAN, S/O. BEERANKUTTY, MOOCHIKKATTIL HOUSE, VANIYANPARA.P.O., POTTIMADA, THRISSUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.26905 of 2009 - O --------------------------------- Dated this the 24th day of September, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To call for the records leading to the passing of Exhibit P3 order by the learned Principal Munsiff Court, Thrissur and set aside Exhibit P3 order. ii) To allow I.A.No.3231/2009 in O.S.No.3761/2003 on the file of the Principal Munsiff Court, Thrissur. ” 2. Petitioner is the first defendant in O.S.No.3791 of 2002 on the file of the Principal Munsiff Court, Thrissur. Suit is one for fixation of boundary, and the respondents are the plaintiffs. On the application moved by the plaintiffs an advocate commissioner was appointed to inspect and measure out the plaint property with the assistance of a surveyor. The commissioner after conducting inspection measured out the property with the assistance of a surveyor and filed a report and plan. Petitioner/first defendant filed objection to that report. He got examined the commissioner and also the surveyor to substantiate his objections. In the enquiry thereof the report and W.P.(C).No.26905 of 2009 - O 2 plan were also exhibited as C1 and C1(a) respectively. Learned Munsiff, after considering the materials produced and hearing the counsel on both sides, negatived the objections raised by the petitioner over the commission report and plan holding that they are not liable to be set aside and no modification is also warranted. Ext.P3 is the copy of that order. Propriety and correctness of that order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and it is dispensed with. 4. Needless to point out, a commission report prepared in a suit or proceedings is only a piece of evidence and its merit has to be adjudged and evaluated with reference to other pieces of evidence let in the case. This Court in exercise of its extra ordinary jurisdiction cannot determine the merit or validity of a commission report and plan which is pending consideration in the W.P.(C).No.26905 of 2009 - O 3 suit before the subordinate court. For that solitary reason itself the challenge against Ext.P3 order canvassed in the writ petition must fail. After going through Ext.P3 order I find that the petitioner should be given one more opportunity to canvass his objections to the report and plan irrespective of the fact that advocate commissioner and also the surveyor who prepared the report and plan after measuring out the property had been examined in the enquiry on the objections raised by the defendants giving rise to the impugned order. It is not known on what basis the commissioner has measured out the property, whether it was on the basis of title deed, survey plan or the nature of boundaries. The reference made to the commissioner’s evidence in Ext.P3 would indicate that survey boundary and actual possession of the plaintiff was not agreeing. Whatever that be, the grievance canvassed by the petitioner can be addressed to, if an opportunity is given to him to canvass his objections at the time of the trial. So much so, irrespective of Ext.P3 order passed by the court below, I direct the court below to examine the merit of the commission report afresh at the time W.P.(C).No.26905 of 2009 - O 4 of trial and at that stage, if it is found, on the materials produced in the case that a fresh commission is necessary it is open to the court to pass appropriate orders. I make it clear I am not expressing any opinion as to whether a fresh commission is to be collected in the suit for adjudication of the disputes involved in the case. Subject to the above observation, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-