IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 WP(C).No. 3936 of 2009(R) ------------------------- OS.447/2005 of MUNSIFF COURT,ALUVA .................... PETITIONER(S): --------------- 1. MADHAVAKUMAR,AGED ABOUT 60, S/O.RAGHAVANPILLA, KUNNUMPURATH PUTHANVEETTIL, ALUVA KARA, ALUVA PAKUTHI. 2. KRISHNAKUMAR, AGED ABOUT 58, S/O.RAGHAVANPILLA,KUNNUMPURATH PUTHANVEETTIL, ALUVA KARA, ALUVA PAKUHI. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENT(S): --------------- 1. RAMADEVI, AGED 55, RAFHVAN PILLAI, KUNNUMPURATH PUTHANVEETIL,ALUVA W/O.V.RADHAKRISHNA PILLA, RESIDING AT HOUSE NO.102, UPASANA NAGAR, NEAR S.S.M.HOSPITAL,KOLLAM TOWN, KOLLAM DISTRICT. 2. T.K.JOHN, AGED ABOUT 74,THOPPIL HOUSE, RAIL ROAD, ALUVA KARA,ALUVA PAKUTHI. 3. RABEKKA JOHN, W/O.T.K.JOHN, AGED ABOUT 73, THOPPIL HOUSE, RAIL ROAD, ALUVA KARA, ALUVA PAKUTHI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.3936 of 2009 --------------------------------------------- Dated this the 16th day of February, 2009 JUDGMENT The petitioners, who are defendants in O.S.No.447/05 on the file of the court of the Munsiff of Aluva, are aggrieved by Ext.P6 order dated 24th November 2008 in I.A.No.1175/08 by which the court below rejected the application submitted by the petitioners to set aside the Commissioner’s report and plan. The suit was filed by the first respondent for fixation of boundaries of the plaint schedule property. A Commissioner was appointed who inspected the properties with reference to the survey records and submitted report and plan. The petitioners are not satisfied with the report and plan submitted by the Commissioner and according to them, they are liable to be set aside. The Commissioner and the surveyor were examined. After taking into account the evidence available in the case, the court below held that the Commissioner and the surveyor have shown in the plan the details regarding the properties, as per the documents and old and re-survey records. It was also held that WPC No.3936 /2009 2 the prayer for setting aside the Commissioner’s report and plan is unsustainable. 2. The learned counsel for the petitioners submitted that if the plan and report are considered with reference to the relevant documents, it can be seen that the Commissioner has not done the work properly. The counsel sought to support his contentions with reference to the measurements shown in the plan. In a petition under Article 227 of the Constitution of India, I do not think that such an exercise is possible. The question is whether the court below was justified in dismissing the application for setting aside the Commissioner's report and plan. The court below has stated reasons for rejecting the prayer. It cannot be said that the reasons stated by the court below are unsustainable. The court below was satisfied with the work done by the Commissioner and it was thought that there is no necessity for a further probe in the matter. 3. Though I am not inclined to interfere with the order passed by the court below, that does not mean that the petitioners would have no opportunity to contend and the Commissioner’s report and plan are not liable to be accepted. WPC No.3936 /2009 3 In spite of the order declining to set aside the report of the Commissioner, the court can at the subsequent stages of the suit vary or alter the same based on other evidence or materials. The order refusing to set aside the Commissioner’s report is interlocutory in nature and nothing contained in it would trammell the trial court from taking a different view if otherwise satisfied at a subsequent stage. Dismissal of the application would not preclude the petitioner from establishing at the time of trial of the suit that further inspection is necessary or that the Commissioner’s report and plan are not acceptable. Reserving the right of the petitioner to do so, the Writ Petition is dismissed. K.T.SANKARAN, JUDGE csl