IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 OP(C).No. 28 of 2011(O) ----------------------- (IA.3798/2010 IN OS . 816/2008 OF MUNSIFF'S COURT, ERNAKULAM) ----------- PETITIONER: ------------------ BINU GEORGE, S/O.LATE GEORGE, AGED 33, RESIDING AT MADATHIPARAMBIL, L.M.PAILY ROAD, VYTILLA, ERNAKULAM DISTRICT. BY ADVS. SRI.T.B.THANKAPPAN SRI.T.T.HARIKUMAR SRI.RAHIL SHENOY RESPONDENTS: ----------------------- 1. BABY HENDRY, W/O.LATE HENDRY, AGED 62, AYATHUPARAMBIL HOUSE, MARADU, OPPOSITE TO KERALEEYAM, MARADI P.O., THRIPUNITHURA-682 301. 2. NISHA, D/O.LATE HENDRY, AGED 46, AYATHUPARAMBIL HOUSE, MARADU, OPPOSITE TO KERALEEYAM, MARADU P.O., THRIPUNITHURA-682 301. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK K.T.SANKARAN, J. ------------------------------ O.P(C).No.28 OF 2011 ------------------------------ Dated this the 20th day of January, 2011 JUDGMENT The plaintiff in O.S.No.816 of 2008 on the file of the Court of the Munsiff of Ernakulam, challenges the order dated 7th December, 2010 in I.A.No.3798 of 2010 by which the court below remitted the Commissioner's report and plan to the same Commissioner with a direction to measure the property with the help of the Taluk Surveyor. 2. Originally a Commissioner was appointed on the application made by the plaintiff. The Commissioner's report was remitted by the order dated 10.2.2010 with certain directions. The Commissioner inspected the property again with the help of a private surveyor and submitted the report and plans. The defendant filed I.A.No.3798 of 2010 to set aside the report and plans. Evidence was taken in the application. The Surveyor was also examined. The court below found, by the order impugned, that the Commissioner failed to comply with the O.P(C).No.28 OF 2011 2 directions issued in the order dated 10.2.2010. The report and plans and the evidence of the Surveyor were meticulously considered by the court below, and the aforesaid conclusion was arrived at. The court below also found that there is no ground to set aside the Commissioner's report. However, the court below thought that to get a plan and report which would enable the court to completely and finally adjudicate upon the dispute involved in the case, remittal of the Commissioner's report and plan is necessary. 3. The court below found that the dispute between the parties could be resolved only after correctly locating the survey line separating 96/4 and 95/1. The contention of the defendant is that the Commissioner did not correctly locate the survey line separating the aforesaid two survey numbers. The court below analyzed the evidence of the Surveyor and found that the line was not correctly fixed. Even then, the court below did not set aside the Commissioner's report. The court below issued certain directions while remitting the report and O.P(C).No.28 OF 2011 3 plan. Instead of the private surveyor, the Taluk Surveyor was appointed to assist the Commissioner. 4. The learned counsel for the petitioner submitted that the order passed by the court below is erroneous and illegal. The evidence of the surveyor was not properly appreciated by the court below. It is also submitted that at a time when the suit was dismissed for default, the defendant in a quite high handed manner constructed a compound wall, thereby restricting the entry of the vehicles to the property of the petitioner/plaintiff. It is submitted that if the Taluk Surveyor has to assist the Commissioner, it will cause great delay in getting the report. It is submitted that there is only one Taluk Surveyor and it will take years to get the assistance of the Taluk Surveyor. This grievance put forward by the petitioner appears to be genuine. The court below shall issue directions to the Commissioner to complete the inspection and to submit the plan and report on or before 1.6.2011. If the court below is of opinion that the Commissioner would not be O.P(C).No.28 OF 2011 4 able to submit the report on or before 1.6.2011 after the inspection with the assistance of the Taluk Surveyor, the court below may pass appropriate orders even for providing the assistance of a private surveyor instead of the Taluk Surveyor, on the application filed by the parties. The court below shall post the case and ascertain from the Commissioner whether the report could be submitted before 1.6.2011. If it is found that it would not be possible for the Commissioner to submit the report without delay, appropriate orders shall be passed by the court below. With the above observations, the Original Petition is disposed of. K.T.SANKARAN, JUDGE. cms