IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 WP(C).No. 21341 of 2007(N) -------------------------------------- OS.531/2001 of MUNSIFF COURT,KOZHIKODE-II .................... PETITIONER: ------------------- KOMBALA DAMODARAN, S/O CHAKKAPPAN, KOMBAL HOUSE, MANJAKADAVU P.O., THIRUVAMBADI AMSOM,DESOM. BY ADV. SMT.T.RESMI DAMODARAN RESPONDENT: ----------------------- THUVAKUNNEL SUKUMARAN, THUVAKUNNEL HOUSE, MANJAKADAVU, KOODERANHI DESOM, KOZHIKODE TALUK. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21341/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PLAINT IN OS. NO.531/2001 DT. 25.6.01. EXT.P2:- COPY OF THE IA. NO.1729/05 DT. 7.6.05. EXT.P3:- COPY OF THE COMMISSION REPORT DT. 6.2.2007. EXT.P4:- COPY OF THE ORDERS DT. 15.6.07 DISMISSING IA. NO.1142/07 AND 820/07. /TRUE COPY/ P.A. TO JUDGE tss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 21341 OF 2007 ------------------------------------------ Dated this the 18th day of July, 2008 JUDGMENT Petitioner is the plaintiff and respondent the defendant in O.S. 531 of 2001 on the file of Munsiff Court, Kozhikode. Suit is one for injunction. At the instance of the petitioner a commission was appointed. The commissioner with the assistance of surveyor prepared a plan and submitted a report. Petitioner filed I.A. 1729 of 2005, an application to set aside the report. According to the petitioner, though the report was set aside, subsequently that order was reviewed and the report was remitted back to the commissioner to file a further report. Commissioner submitted a further report after inspection clarifying the objections raised by the petitioner. Petitioner, thereafter, filed I.A. 820 of 2007, another application to set aside the report submitted by commissioner on 17.9.2004, the first report and on 6.2.2007, the additional report. Under Ext.P4 order, learned Munsiff dismissed the application. It is challenged in this petition filed under Article 227 of Constitution of India. WPC21341/07 2 2. Learned counsel appearing for petitioner was heard. Though notice was served on respondent, he did not appear. 3. The argument of the learned counsel is that though suit is one for injunction, identity of the property is in dispute. The property of the respondent lies to the south of the plaint schedule property and unless the eastern boundary of the plaint schedule property is properly fixed, proper relief cannot be obtained. Learned counsel also argued that commissioner did not identify the plaint schedule property properly. It was vehemently argued that eastern boundary can be fixed only by measuring all the neighbouring properties and commissioner has not done so and therefore the identification is not correct and hence the reports and plan should have been set aside. 4. On hearing the learned counsel, I do not find any reason to interfere with Ext.P4 order in exercise of the powers of this Court under Article 227of Constitution of India. Learned counsel argued that petitioner was not even permitted to cross- examine the commissioner, even though an application was filed for the said purpose. Petitioner is at liberty to adduce any evidence in support of his case with regard to the identification of the property. Petitioner is also entitled to adduce evidence WPC21341/07 3 either by cross-examining the commissioner or surveyor or by examining any other expert and establish that the eastern boundary marked by the commissioner is not correct. In such circumstances petition is dismissed. Petitioner is also entitled to challenge the order along with the final judgment, if it goes against him. M. SASIDHARAN NAMBIAR, JUDGE Okb/-