IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 24545 of 2007(V) -------------------------- OS.141/2004 of MUNI-MAGI.COURT,PONNANI .................... PETITIONER: ------------ KARUTHA @ NAFEESA AGED 62 YEARS D/O.MUHAMMED, KATTANTKATH HOUSE, VELIAMCODE AMSOM DESOM PONNANI TALUK. BY ADV. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY RESPONDENT: ------------- RUKIYA, AGED 35 YEARS, D/O.MAMMU,PUTHENPURAYIL HOUSE, VELIAMCODE AMSOM DESOM PONNANI TALUK. BY ADV. SRI.T.K.SAIDALIKUTTY SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioner's Exhibits:- Ext.P1:- True copy of Document No.2210/1967 Ext.P2:- True copy of Document No.181/1946 Ext.P3:- True copy of Document No.2206/67 Ext.P4:- True copy of Document No. 2207/67 Ext.P5:- True copy of Document No.2208/67 Ext.P6:- True copy of the commission report and the plan Ext.P7:- True copy of the commission report and the plan Ext.P8:- True copy of the order in I.A.No.303 of 2007 /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.24545 OF 2007 =========================== Dated this the 11th day of June, 2008 JUDGMENT Petitioner is the plaintiff in O.S.141/2004 on the file of Munsiff Court, Ponnani. Respondent is the defendant. Petitioner filed I.A.303 of 2007 an application under Rule 10 of Order XXVI of Code of Civil Procedure to set aside the report and plan submitted by the Commissioner. Under Ext.P8 order the petition was dismissed. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. Learned counsel appearing for petitioner and respondent were heard. 3. The argument of the learned counsel appearing for petitioner is that Commissioner has not identified the property with the assistance of surveyor and he did not properly identify the property. Learned counsel argued that when examined, Commissioner deposed that he did not W.P.(C)24545/2007 2 properly identify the property and in such circumstance, learned Munsiff should have set aside the report and appointed another Commissioner. 4. On hearing the learned counsel and on going through Ext.P8 order, I do not find any reason to interfere with Ext.P8 order. Petitioner is at liberty to adduce evidence in support of her objections raised therein in the suit. It is made clear that if after recording the evidence, court finds that the property is not properly identified, court is competent to either direct the Commissioner to submit a further report or to appoint another Commissioner. Writ Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006