IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).No. 17389 of 2010(O) -------------------------- OS.125/2007 of PRL.M.C.,KANNUR .................... PETITIONER: --------------- ARAVAMPALLI PUTHIYAPURAYIL RAHMATH, D/O.KUNHIPATHUMMA,AGED 37 YEARS,RESIDING AT NARATH AMSOM,DESOM,P.O.NARATH,KANNUR. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.K.BABU SRI.BINU PAUL SRI.T.V.VINU RESPONDENTS: --------------- 1. ARUVAMPALLI PUTHIYAPURAYIL ARYAMBATTU KUNHIPATHUMMA,D/O.AHAMMED KUTTY,AGED 87 YEARS, RESIDING AT NARATH AMSOM DESOM,KANNUR TALUK. 2. A.P.A.KUNHAYISSA,AGED 67 YEARS, NO OCCUPATION,RESIDING AT NARATH AMSOM AND DESOM, P.O.NARATH. 3. A.P.A.NABEESA,AGED 65 YEARS, RESIDING AT -DO- . 4. A.P.A.KADEEZA,AGED 62 YEARS, RESIDING AT -DO-. 5. A.P.A.AMINA,AGED 60 YEARS, RESIDING AT -DO- . 6. A.P.A.ASMA,AGED 57 YEARS, RESIDING AT -DO- . 7. A.P.A.AYSA,AGED 54 YEARS,RESIDING AT -DO-. 8. A.P.A.MOOSAN,AGED 47 YEARS, RESIDING AT -DO-. 9. A.P.A.MUSTHAFA,AGED 45 YEARS, RESIDING AT -DO-. WP(C).No. 17389 of 2010(O) 10. A.P.A.ABDULLA,S/O.MOHAMMED,AGED 75 YEARS TAHIRA MANZIL,NARATH AMSOM,DESOM,NARATH. 11. ARUVAMPALLI PUTHIYAPURAYIL KUNHAMMED, S/O.BEEMA UMMA,AGED 45 YEARS,RESIDING AT NARATH AMSOM DESOM,KANNUR TALUK. 12. ARUVAMPALLI PUTHIYAPURAYIL BEEMA UMMA, D/O.AHAMMED KUTTY,AGED 70 YEARS,NO OCCUPATION, RESIDING AT NARATH AMSOM,DESOM,P.O.NARATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 17389 of 2010 --------------------------------------- Dated this 04th day of June, 2010 JUDGMENT Writ petitioner is defendant No.2 in O.S.No.125 of 2007 of the court of learned Munsiff, Kannur. That is a suit filed by respondent Nos.1 to 10 against petitioner and respondent Nos.11 and 12 for fixation of boundary between plaint A schedule claimed by respondent Nos.1 to 10 and B schedule belonging to petitioner and other defendants. Both traced title to partition deed No.1824 of 1937. Advocate Commissioner appointed in the case measured the property with the assistance of a Private Surveyor and submitted Exts.P3 and P4, report and plan. Petitioner filed Ext.P5, application (I.A.No.3673 of 2008) to remit the report and plan making some allegation against the Commissioner and the Private Surveyor and requesting that the properties be measured with the assistance of Taluk Surveyor. That application was dismissed by learned Munsiff as per Ext.P7, order dated 05-12-2008. A few years after, petitioner has filed this writ petition on 03-06-2010 to quash Ext.P7, order stating that measurement of plaint A and B schedule properties as per partition deed is necessary and that there was no proper measurement effected by the Private W.P.C.No.17389 of 2010 : 2 : Surveyor. Learned Munsiff observed that if petitioner stood by his allegations against Commissioner and Private Surveyor it is a case where he should have requested to set aside the report and plan and not to remit it but no such request for setting aside the report is made. Learned Munsiff also observed that identification made by Commissioner and Private Surveyor is sufficient for disposal of the suit. Learned counsel submits that observation made by learned Munsiff is premature and that report and plan may be remitted to the Advocate Commissioner for fresh measurement with the assistance of Taluk Surveyor. 2. Ext.P7, order was passed on 05-12-2008 and this writ petition is filed on 03-06-2010 when the case is already included in the list for trial. It is respondent Nos.1 to 10 who want fixation of boundary and hence it is for them to prove that boundary of their property has been properly identified. Petitioner has not sought any relief in the suit except dismissal of the suit. It is open to the petitioner to show that report and plan submitted by the Advocate Commissioner and Private Surveyor are not correct by examining them and by other evidence. The acceptability of report and plan will certainly be considered by the learned Munsiff after taking into account the evidence on record untrammeled by any observation made by the learned Munsiff and contained in Ext.P7. In the W.P.C.No.17389 of 2010 : 3 : circumstances stated above I do not find reason to interfere with the order under challenge. With the above observation the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-