IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 507 of 2009(I) ------------------------ AGAINST THE ORDER DATED IN IA.4613/2008 IN OS.456/2007 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- 1. M.A.KHARIM, AGED 66 YEARS, S/O.MOHAMMED KASSIM, AL-AMAN RESIDENCY AVENUE, ASRAMAM CHERRY, ASRAMAM.PO, KOLLAM-691 002. 2. H.SHEREEFA @ H.SHEREEFA BEEVI,AGED 61 YRS, W/O.M.A.KHARIM, AL-AMAN RESIDENCY AVENUE, ASRAMAM CHERRY, ASRAMAM.PO, KOLLAM-691 002. 3. SEEYAL.A.KHARIM, AGED 36 YEARS, S/O.M.A.KHARIM, AL-AMAN RESIDENCY AVENUE, ASRAMAM CHERRY, ASRAMAM .P.O, KOLLAM-691002. 4. SEEYAS.A.KHARIM, AGED 32 YEARS, S/O.M.A.KHARIM, AL-AMAN RESIDENCY AVENUE, ASRAMAM CHERRY, ASRAMAM.PO, KOLLAM-691002. 5. SINJU.A.KHARIM,AGED 37 YEARS, S/O.M.A.KHARIM, AL-AMAN RESIDENCY AVENUE, ASRAMAM CHARRY, ASRAMAM.P.O,KOLLAM-691002. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): --------------- 1. SRI.E.G.MANOJ, AGED 44 YEARS, S/O.E.G.GOPINATHAN "ATHIRA",SOUTH NALUVAZHY, NORTH PARUR, ERNAKULAM DIST. 2. MRS.SALINA MANOJ, AGED 39 YEARS, W/O.E.G.MANOJ, "ATHIRA",SOUITHJ NALLUVAZHY, NORTH PARUR, ERNAKULAM DIST. 3. M/S.VILAS CONSTRUCTIONS,38,4TH FLOOR, G.C.D.A,COMMERCIAL COMPLEX,MARINE DRIVE,COCHIN-31, REP;ITS PARTNERS MRS.SUKUMARI MURALIDHARAN,W/O. MURALIDHARAN,AGED NOT KNOWN,31/234A,PUSHPANJALI, VYTTILA POONITHURA VILLAGE,KANAYANNUR TALUK, SRI.T.P.MURALIDHARAN,63,31/234 A,KANAYANNUR TALUK. WPC 507/09 4. M/S.LOTUS CONSTRUCTIONS,NO.38,4TH FLOOR G.C.D.A.COMMERCIAL COMPLEX,MARINE DRIVE,COCHIN-31, A PARTNERSHIP FIRM REP;BY ITS PARTNER SRI. T.P.MURALIDHARAN,FATHER'S NAME NOT KNOWN, AGED 63, 31/234 A,PUSHPANJALI,VYTTILA POONITHURA VILLAGE, KANAYANNUR TALUK. 5. MRS.SUKUMARI MURALIDHARAN, W/O.MURALIDHARAN,AGED NOT KNOWN,31/234 A, PUSHPANJALI, VYTTILA POONITHURA VILLAGE, KANAYANNUR TALUK. 6. SRI.T.P.MURALIDHARAN,FATHER'S NAME NOT KNOWN,AGED 63 YRS,31/234 A,PUSHPANJALI, VYTTILA POONITHURA VILLAGE, KANAYANNUR TALUK. 7. SHONEY SAJIL, AGED 45 YRS, W/O.T.S.SANAL, THANDASSERY HOUSE, VADUTHALA HOUSE, CHERANALLOOR VILLAGE,KANAYANNUR TALUK, ERNAKULAM DIST. ADV. SRI.E.K.NANDAKUMAR FOR R3 TO 6 SRI.A.K.JAYASANKAR NAMBIAR FOR R3 TO 6 SRI.K.JOHN MATHAI FOR R3 TO 6 SRI.P.BENNY THOMAS FOR R3 TO 6 SRI.ANIL D. NAIR FOR R3 TO 6 SRI.K.P.SREEKUMAR FOR R7 SRI.C.AJITH KUMAR FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 507/09 APPENDIX PETITIONERS' EXHIBITS: EXT.P1: COPY OF PLAINT IN O.S.NO.456/07 OF SUB COURT, ERNAKULAM FILED BY THE PETITIONERS. EXT.P2: COPY OF COMMISSION APPLICATION IN I.A.NO.4613/08 IN O.S.NO.456/07 OF SUB COURT, ERNAKULAM. EXT.P3: COPY OF WORK MEMO FILED BY THE 7TH RESPONDENT. EXT.P4: COPY OF SURVEY PLAN. EXT.P5: COPY OF INTERIM REPORT DATED 15.12.2008 FILED BY THE ADVOCATE COMMISSIONER. EXT.P6: COPY OF ORDER DATED 1.1.2009 IN I.A.NO.4613/08 IN O.S.NO.456/07 OF SUB COURT, ERNAKULAM. EXT.P7: COPY OF BLUE PRINT OF THE SURVEY PLAN FROM the OFFICE OF THE SUPERINTENDENT OF SURVEYS OBTAINED BY THE PETITIONERS. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.507 of 2009 --------------------------------------------- Dated this the 4th day of March, 2009 JUDGMENT The plaintiffs in O.S.No.456 of 2007, Sub Court, Ernakulam, have filed this Writ Petition challenging Ext.P6 order dated 1st January 2009 in I.A.No.4613 of 2008 by which the court below directed the Commissioner to forthwith return the order unexecuted. 2. The suit was filed by the petitioners for declaration of title and recovery of possession of the plaint schedule property. Apart from denying the title of the plaintiffs, the defendants disputed the identity of the property. On the application filed by the plaintiffs, a Commissioner was appointed to inspect the property with the assistance of the Taluk Surveyor. It is submitted by the counsel for the petitioners that the Commissioner filed an interim report stating that there was wild growth in the property and that the wild growth should be removed to facilitate inspection of the property. On 24.9.2008, the court below directed the seventh defendant to remove the WPC No.507/2009 2 wild growth. The wild growth was removed. The Commissioner inspected the property and filed another interim report stating that the survey plan was not available. On 6.11.2008, the court below directed the plaintiffs to get a survey plan. Accordingly, the plaintiffs produced a plan before the court below which is marked as Ext.P4 in the Writ Petition. Thereafter, it would appear that the Commissioner inspected the property again and filed Ext.P5 interim report dated 15.12.2008 stating that Ext.P4 plan does not have side measurements. On the basis of this interim report, the court below passed the order impugned dated 1.1.2009 directing the Commissioner to return forthwith the warrant unexecuted. Learned counsel for the petitioners submitted that subsequently the plaintiffs have obtained another survey plan with side measurements which is produced and marked as Ext.P7 in the Writ Petition. 3. I am of the view that the order passed by the court below is unsustainable. The Commissioner has to execute the work and submit a report and plan with reference to the title deeds and survey records. If the survey records are insufficient and a report on the basis of the survey records cannot be WPC No.507/2009 3 effectively made, the Commissioner could report the same in the final report. The Commissioner also could call for the relevant records from the parties or even request the surveyor to make available the survey records. Whether a survey plan with side measurements is available or not, is not a ground for recalling the warrant issued to the Commissioner. It is necessary to the Commissioner to file a final report. The interim reports would not serve the purpose. The order impugned passed by the court below is set aside. The Commissioner shall inspect the property and file a report and plan, as expeditiously as possible. The inspection shall be completed within a period of two months and the report shall be filed within another month. The court below shall afford a reasonable opportunity to the parties to file objections and shall make every endeavour to dispose of the suit at the earliest. The Writ Petition is disposed of accordingly. K.T.SANKARAN, JUDGE csl