IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WP(C).No. 32732 of 2007(V) -------------------------- AGAINST THE ORDER IN IA 817/2007 IN OS.154/2006 of MUNSIF COURT, KANJIRAPPALLY .................... PETITIONER: ------------ SHERLY THOMAS, PANANATTATHU HOUSE, MUNDAKAYAM, MUNDAKAYAM KARA, KOTTAYAM DISTRICT. BY ADV. SRI.C.S.MANILAL RESPONDENTS: ------------- 1. STANLY P.THOMAS, SOUMYA BHAVAN HOUSE, VATTAYAR CHURCH ROAD, ALAPPUZHA KARA, ALAPPUZHA DISTRICT. 2. ELIZABETH STANLY, W/O.STANLY P.THOMAS, SOUMYA BHAVAN HOUSE, VATTAYAR CHURCH ROAD, ALAPPUZHA KARA, ALAPPUZHA DISTRICT. 3. JOSEPH ANTONY, CHERUVIL HOUSE, PAINGANA BHAGOM, UNDAKAYAM VILLAGE. 4. THE DISTRICT SUPERINTENDENT OF SURVEY AND LAND RECORDS, KOTTAYAM. BY ADV. SRI.KKM.SHERIF FOR R3 SRI.P.M.KUNJIMOIDEENKUTTY FOR R3 SRI.LAL K.JOSEPH FOR R3 SRI.A.A.ZIYAD RAHMAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.32732 of 2007 EXT.P1 TRUE COPY OF THE SKETCH PREPARED BY THE COMMISSIONER AND THE SURVEYOR. EXT.P2 TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN O.S.NO.154/06 SEEKING TO SET ASIDE THE REPORT AND PLAN. EXT.P3 TRUE COPY OF THE PETITION IN O.S.NO.154/06 TO SET ASIDE THE REPORT AND P PLAN. EXT.P4 TRUE COPY OF THE HAND WRITTEN DEPOSITION OF SRI.KRISHNAN NAIR THE SURVEYOR. EXT.P5 TRUE COPY OF THE ORDER DATED 4.10.2007 IN I.A.NO.814/07 IN O.S.NO.154/06 OF THE MUNSIFF COURT, KANJIRAPPALLY. EXT.P6 TRUE COPY OF THE PETITION DATED 26.4.2007 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.32732 of 2007 ------------------------------- Dated this the 30th June, 2008. J U D G M E N T Petitioner is the plaintiff in O.S.No.154 of 2006, on the file of the Munsiff Court, Kanjirappally. The suit is one for injunction. Respondents are the defendants. Petitioner applied for appointment of a commission. A commissioner was appointed. Commissioner with the assistance of the surveyor prepared a plan and submitted Ext.P2 report. Petitioner filed I.A.No.814 of 2007, an application to set aside the report, contending that property was not properly identified. In that application, surveyor was examined as PW.1. Learned Munsiff, on the materials placed, dismissed the petition, holding that at this stage, the report cannot be set aside. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioner and respondents were heard. 3. On hearing the counsel appearing for both sides and on going through Ext.P5 order, and Ext.P4 copy of the deposition of W.P.(C) No.32732 of 2007 2 the surveyor, it is clear that there are omissions in the report, which could be corrected, if the report is remitted back to the Commissioner. Learned Munsiff should have remitted the report back to the Commissioner to file a further report, in the light of the objections raised. The writ petition is allowed. Learned Munsiff is directed to remit the report and plan filed by the Commissioner, to the Commissioner to file a further report, in the light of the objections raised by the petitioner in I.A.No.814/2007. Expense of the Commissioner shall be met by the petitioner. M.SASIDHARAN NAMBIAR, JUDGE nj.