IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 4396 of 2009(W) ------------------------- AGAINST THE ORDER IN IA 1402/2008 IN OS.72/1988 of MUNSIFF COURT, THALASSERY .................... PETITIONER(S): --------------- 1. MUHAMMED ALI, S/O. ABDULLA HAJI, 51 YEARS, BUSINESS, RESIDING AT KT HOUSE, ELANGODE PANOOR, THALASSERY, KANNOOR DISTRICT, KERALA. 2. SUHARA, D/O. ABDULLA HAJI, NO OCCPUTATION, RESIDING AT KT HOUSE, ELANGODE PANOOR, THALASSERY, KANNOOR DISTRICT, KERALA. 3. HAJIRA, D/O. ABDULLA HAJI, 45 YEARS, NO OCCUPATION, RESIDING AT KT HOUSE, ELANGODE PANOOR, THALASSERY, KANNOOR DISTRICT, KERALA. 4. SHAHIDA, D/O. ABDULLA HAJI, 42 YEARS, NO OCCUPATION, RESIDING AT KT HOUSE, ELANGODE PANOOR, THALASSERY, KANNOOR DISTRICT, KERALA. BY ADV. SRI.K.P.HAREENDRAN SMT.MIJI JOHN RESPONDENT(S): --------------- EARAYINTIDA ANNERI KRISHNAN, S/O. KORUMBAN, AGED 73 YEARS, NO OCCUPATION, PARAYINMEL HOUSE, P.O. ELANGODE, PANOOR, THALASSERY. ADV. SRI.CIBI THOMAS FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 4396/09 APPENDIX PETITIONERS' EXHIBITS: EXT.P1: COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 5.3.2007 MADE IN S.A.NO.89 OF 1993. EXT.P2: COPY OF THE REPORT DATED 26.2.2008 AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER. EXT.P3: COPY OF THE AFFIDAVIT AND PETITION DATED 5.7.2008. EXT.P4: COPY OF THE COUNTER DATED 29.7.2008. EXT.P5: COPY OF THE ORDER MADE IN I.A.NO.1402 OF 2008 DATED 12.12.2008. EXT.P6: COPY OF THE EARLIER COMMISSIONER'S REPORT AND PLAN DATED 16.8.1990. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.4396 of 2009 --------------------------------------------- Dated this the 26th day of February, 2009 JUDGMENT The petitioners are supplemental plaintiffs 3 to 6 in O.S.No.72/1988 on the file of the court of the Munsiff, Thalassery. The suit was filed for recovery of possession of the plaint B schedule property and for permanent prohibitory injunction restraining the defendants from trespassing upon the plaint A schedule property excluding the plaint B schedule property. There is also a prayer to direct the defendant to remove the bunk from the plaint B schedule property. 2. The suit was remanded to the trial court in Second Appeal No.89/1993. The operative portion of the remand order reads as follows: “Second Appeal is allowed. The decree and judgment passed by learned Sub Judge in A.S.No.169/91 on the file of Sub court, Thalassery is set aside. O.S.No.72/88 is restored to file and learned Munsiff is directed to dispose the suit after granting an opportunity to the plaintiff to establish the identity. It is made clear that plaintiff has to take out a commission and establish that plaint ‘A’ schedule property is part of the property covered under Ext.A1 and not the property covered under Ext.B1 and plaint ‘A’ schedule property is the remaining property left with him WPC No.4396/2009 2 after execution of Ext.A3 wakf deed. As the suit is of 1988, learned Munsiff has to dispose the suit as expeditiously as possible. Parties are directed to appear before the learned Munsiff on 28.3.2007. Send back the records forthwith.” 3. After remand, a Commissioner was appointed to identify the disputed property. The Commissioner filed report and plan. The petitioners filed I.A.No.1402/08 to remit the Commissioner’s plan and report to the same Commissioner with a direction to file a revised report and plan. In the affidavit accompanying the application, supplemental plaintiff No.3 has pointed out certain defects in the plan and report. The application was opposed by the respondent. The court below dismissed I.A.No.1402/08 by the order dated 12th December 2008 which is under challenge in this Writ Petition. The court below held that on perusing the Commissioner’s report and plan, it is seen that the properties were inspected with the aid of field measurement book and with the assistance of Taluk Surveyor. It was held that the Commissioner had referred to all the documents which were made available to him and filed a report and plan after inspecting the property. 4. The case went up to High Court in Second Appeal and it was remanded for the specific purpose of identifying the WPC No.4396/2009 3 property. According to the petitioners, there are certain aspects to be noticed by the Commissioner for the proper identification of the property. However, the plaintiffs have not examined the Commissioner to bring forth the necessary details in evidence. 5. I am of the view that the court below was not justified in dismissing the application for remitting the Commissioner’s report. It would have been ideal if the Commissioner was examined before disposing of the application. After examining the Commissioner, if the court finds that the Commissioner has done the work properly and the report and plan are sufficient for the effective and complete adjudication of the disputes involved in the case, there is no necessity for remitting the Commissioner’s report. On the other hand, if the court comes to the conclusion that some more details are necessary or that further inspection is required, the court may allow the application and issue specific directions to the Commissioner. The petitioners are permitted to examine the Commissioner as a court witness, so that both parties would be entitled to cross examine the Commissioner. I am of the view that the court below could have directed the petitioners to examine the Commissioner before taking a final decision in the matter. WPC No.4396/2009 4 The Writ Petition is partly allowed. The order impugned is set aside and the trial court is directed to dispose of I.A.No.1402 of 2008 afresh in the manner indicated above. K.T.SANKARAN, JUDGE csl