IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WP(C).NO. 9389 OF 2010(O) ----------------------------------------- OS.985/2005 OF PRL.M.C.,IRINJALAKUDA .................... PETITIONER(S): ------------------------ 1. GOPI, S/O.KANDENGATTIL VELAPPAKUTY, NEMMANIKKARA VILLAGE, PAYAZHI DESOM, THRISSUR. 2. SUNIL DAS, S/O.KANDENGATTIL VELAPPAKUTTY, NEMMANIKKARA VILLAGE, PAYAZHI DESOM, THRISSUR. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): ------------------------- 1. PRABOSH, S/O.MANAKKATTUMPADI PRABAKARAN, NEMMANIKKARA VILLAGE, PAYAZHI DESOM, THRISSUR. 2. DEEPA, W/O.PRABOSH, NEMMANIKKARA VILLAGE, PAYAZHI DESOM, THRISSUR. ADV. SRI.V.M.KRISHNAKUMAR FOR R1 & 2 SMT.P.A.ANITHA FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COY OF THE PLAINT IN O.S. NO.985 OF 2005 OF THE MUSNIFF COURT AT IRINJALAKUDA. EXHIBIT P2 TRUE COPY OF THE COMMISSION REPORT DATED 20.6.2007. EXHIBIT P3 TRUE COPY OF THE PETITION FILED TO APPOINT ANOTHER COMMISSIONER. EXHIBIT P4 TRUE COPY OF THE COMMISSION REPORT DATED 9.12.2009. EXHIBIT P5 RUE COPY OF THE PETITION IA 940 OF 2010 SEEKING TO REMIT BOTH THE COMMISSION REPORTS. EXHIBIT P6 TRUE COPY OF THE ORDER IN IA. NO.940 OF 2010 DATED 12.3.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.9389 of 2010 ==================================== Dated this the 29th day of July, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.6, order refusing to remit the two reports and plan. Petitioners/plaintiffs sued respondents for recovery of possession of plaint B schedule described in the plaint schedule as three cents and which according to the petitioners formed part of 75 cents described in plaint A schedule. According to the petitioners, respondents trespassed into plaint A schedule and took forcible possession of it which is described as B schedule. Plaint C schedule is property of respondents which according to the petitioners is only 9.50 cents. On the request of petitioners an Advocate Commissioner (Sri.M.K.Prasad) inspected the properties with assistance of Taluk Surveyor and submitted Ext.P2, report. Thereafter there was an application from the side of respondents to issue a commission and that application was allowed. Advocate Johnson K.J. was appointed as commissioner. He, assisted by Surveyor prepared report and plan (Ext.P4). Petitioners also wanted certain matters to be ascertained by Advocate Johnson which also was done and W.P(C) No.9389 of 2010 -: 2 :- reported in Ext.P4. Thereafter petitioners filed I.A. No.940 of 2001 to remit Exts.P2 and P4 stating that extent of properties allegedly trespassed upon by the respondents and in the possession of petitioners have not been properly identified in Ext.P4 and that as requested by respondents property acquired by their predecessor-in-interest as per document No.3383/1118 was not identified. Learned counsel contends that as regards the area allegedly trespassed upon by respondents in the reports did not tally and in the circumstances it is necessary to have these reports remitted to the Commissioner for fresh inspection and report. According to the learned counsel for respondents earlier report was already remitted and further remission is not required. Even according to the petitioner in Ext.P2 there is proper identification of the properties and area allegedly trespassed upon by the respondents. Petitioners stand by Ext.P2, report. In Ext.P4, report extent of property in the possession of parties is stated to be different and in answer to a question put by the petitioners Advocate Johnson reported that plot A in his report takes in plot C marked by Advocate Prasad in his report (portion allegedly trespassed upon by respondents). If at all petitioners have a grievance that Ext.P4, report is not W.P(C) No.9389 of 2010 -: 3 :- acceptable on facts or on account of any other reason it is open to them to raise that contention during the course of trial. Learned counsel for petitioners has a contention that when Ext.P2, report was available it was not proper for the court to have deputed another Commissioner. That also is a matter which the petitioner can urge at the time of trial as to the acceptability of Ext.P4, report. Court below has observed that reports had been remitted once and further remission is not required. Learned counsel for petitioners points out that it is not a question of remission of Ext.P2 but a fresh appointment of Commissioner – Advocate Johnson) and obtaining Ext.P4, report. I however do not consider it necessary to pronounce verdict on that question. 2. So far as non-measurement of property covered by document No.3383/118 relied on by respondents is concerned it is open to petitioners to point out that as a defect not to accept Ext.P4, report. I must also bear mind that respondents do not have a complaint that their property has not been measured with reference to the said document. In the circumstances I do not find it necessary to remit the reports as requested. W.P(C) No.9389 of 2010 -: 4 :- Resultantly without prejudice to the right of petitioners to show that Ext.P4, report is not acceptable on issue of facts and law as available to them, this Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv