IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 WP(C).No. 19634 of 2008(K) -------------------------- OS.373/2006 of MUNSIFF COURT, HOSDRUG .................... PETITIONER: ------------ 1. WEST ELERI GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY K.K.SATHYAN, WEST ELERI GRAMA PANCHAYATH P.O.BEEMANDY, NILEESHWARVIA, KASARAGOD DIST. 2. V.THAMBAYI, PRESIDENT, WEST ELERI GRAMA PANCHAYATH, P.O.BEEMANADY, NILEESHWAR VIA. KASARAGOD DIST. 3. T.K.SUKUMARAN, CHAIRMAN, WEST ELERI GRAMA PANCHAYATH, P.O.BEEMANADY, NILEESHWAR VIA. KASARAGOD DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ------------- T.V.SAJEEVAN, S/O.KANNAN, THAYATH VEEDU, BEEMANADY VILLAGE, P.O.BEEMANADY, NILEESHWAR, KASARAGOD DIST. BY ADV. SRI.K.JAJU BABU FOR R1 SRI.T.R.SADEESAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.19634 of 2008 EXT.P1 TRUE COPY OF THE PLAINT O.S.NO.373 OF 2006 EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT. EXT.P3 TRUE COPY OF THE REPORT SUBMITTED BY THE COMMISSIONER. EXT.P4 TRUE COPY OF THE PLAN SUBMITTED BY THE COMMISSIONER. EXT.P5 TRUE COPY OF THE APPLICATION FILED BY THE DEFENDANTS FOR REMITTING THE COMMISSIONER'S REPORT. EXT.P6 TRUE COPY OF THE ORDER DATED 30.5.2008 EXT.P7 TRUE COPY OF THE LETTER DATED 12.5.2008 ISSUED BY THE DEPUTY DIRECTOR OF SURVEYOR TO THE 3RD RESPONDENT. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.19634 of 2008 ------------------------------- Dated this the 28th July, 2008. J U D G M E N T Defendants in O.S.No.373 of 2006, on the file Munsiff Court, Hosdurg, are the petitioners. Respondent is the plaintiff. The suit is filed for realisation of Rs.50,000/= being the damages allegedly caused by loss of cut bamboos belonging to the respondent. At the instance of the respondent, a commission was appointed. Commissioner submitted a report and plan. Petitioner filed I.A.No.896 of 2008, an application under Rule 10 of Order XXVI of Code of Civil Procedure to remit the report. Under Ext.P6 order, Munsiff dismissed the application. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioners and respondent were heard. 3. The learned counsel appearing for the petitioners argued that Commissioner inspected the property on 14.12.2007 at a W.P.(C) No.19634/2008 2 time when there was no rain and as a result the river was dried and Commissioner, could not properly identify and locate the river and river purampoke. It was argued that there is river purampoke belonging to petitioner panchayat in R.S.No.176, though in the survey records, it was omitted to be shown. Reliance was placed on Ext.P7 communication sent by Deputy Director of Survey, Kasargod, to the Chairman of the petitioner Panchayat disclosing that re-survey of Hosdurg Taluk could not be commenced and Chitravahini river flows through several survey numbers including R.S.No.176. It was argued that in such circumstances the exact river purampoke falling in R.S.No.176 has to be fixed, and, therefore, learned Munsiff should have remitted the report as sought for. 4. The learned counsel appearing for the respondent relying on a Division Bench decision of this Court in Kanaran Nair v. Madhavan Nair (1996 (1) KLT 162) argued that even a revision under Section 115 was held to be not maintainable as against an order dismissing an application for remitting the report, and as court is entitled to remit the report, if warranted, after recording the evidence, writ petition itself is not maintainable. W.P.(C) No.19634/2008 3 On hearing the learned counsel and on going through Ext.P6 order, Ext.P3 report and Ext.P1 plaint, I do not find any illegality or irregularity in Ext.P6 order warranting interference. As stated earlier, the suit is only for realisation of damages allegedly caused by the loss of cut bamboos, which according to the petitioners were standing in the river purampoke. In the plaint, no relief of declaration of title to the disputed property was sought. Only if a decree for declaration of title to the disputed property was sought, it is necessary to find out whether the disputed property forms part of the river purampoke or the private property of respondent. The purpose of remittance sought for is to find out whether the entire R.S.No.176 is a private property or a portion of R.S.No.176 is river purampoke. In the nature of the suit, I do not find that it is to be decided in the suit, as it now stands. If the plaint is subsequently amended, petitioners are entitled to apply for appointment of a commission, incorporating the prayer sought for in I.A.No.896 of 2008 or to remit the report to the same Commissioner. Petitioner is also entitled to examine the Commissioner and bring out that there is river purampoke land in R.S.No.176, at the time of evidence. If, at the time of evidence, court finds that there should be proper identification to answer the question W.P.(C) No.19634/2008 4 whether the entire R.S.No.176 is a private property or inclusive of river purampoke land, Court is competent either to remit the report or to appoint another Commissioner, and in that case, Ext.P6 order will not preclude the court in passing appropriate orders. Writ petition is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE nj.