IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 2591 of 2009(H) ------------------------------------------- OS.29/2004 of MUNSIFF COURT, HARIPAD .................... PETITIONER: CHANDRASEKHARAN PILLAI, CHEKKOTTU VEETIL, THEKKEKARA KIZHAKKUM MURI, PALLIPPAD VILLAGE. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS: 1. BHARGAVI AMMA, CHEKKOTTUVEETIL, THEKKEKARA KIZHAKKUM MURI, PALLIPPAD VILLAGE. 2. VIJAYA KUMAR, CHEKKOTTUVEETIL, THEKKEKARA KIZHAKKUM MURI, PALLIPPAD VILLAGE. 3. PADMAKUMAR, CHEKKOTTUVEETTIL, THEKKEKARA KIZHAKKUM MURI, PALLIPPAD VILLAGD. 4. GOPALAN NAIR, CHEKKOTTUVEETIL, THEKKEKARA KIZHAKKUM MURI, PALLIPPAD VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.2591 of 2009 H -------------------------- JUDGMENT Petitioner is the plaintiff in O.S.No.29/04 on the file of the Munsiff's Court, Haripad. He instituted the said suit against the respondents for fixation of boundary, for permanent prohibitory injunction as also for mandatory injunction. Another suit O.S.No.46/04 was filed by defendants 1 and 3 in O.S.No.29/04 against the petitioner/ plaintiff for declaration of prescriptive easement right of way. A counter claim was also advanced in O.S.No.29/04 aforesaid. The two cases were being jointly tried treating O.S.No.29/04 as the leading case. 2. In the course of trial, the petitioner/ plaintiff filed a commission application for measurement of the properties with the assistance of a surveyor. The prayer was to measure out the properties on the basis of partition Deed No.655/ 1104 M.E. of Sub Registry Office, Karthikappally. WPC 2591/09 2 Respondents also requested the court to ascertain matters, which they set out in their objections filed to the commission application. The trial court allowed that prayer. The Commissioner filed a report wherein, he has stated that even though the old survey plan regarding plaint A, B and C schedule properties was produced before him, that was not a sub division plan and therefore, he could not measure out the properties on the basis of old survey plan and that therefore, he measured out the properties on the basis of re-survey plan. He also expressed his inability to measure out the property on the basis of the old survey plan. However, the petitioner filed an application (I.A. No.486/08) to set aside the commission report. It was alleged therein that the Commissioner refused to measure out the properties on the basis of old survey plan even though such a plan was produced before the Commissioner. WPC 2591/09 3 3. The court below observed that there is no serious allegation regarding measurement of the properties based on re-survey plan and therefore, without setting aside the commission report, he directed the Commissioner to measure out the properties on the basis of old survey plan and partition deed and ascertain items 1 to 4 mentioned in I.A.No.1113/06. Accordingly, the Commissioner filed another supplementary report wherein also, he expressed his inability to locate the properties on the basis of old survey plan. The court below was of the view that the stand taken by the Commissioner is true. The trial court, therefore, disallowed the request to set aside that report as well and observed that he is not prepared to direct the Commissioner to do an impossible act and dismissed the application for remitting the commission report again. It was also observed that both the cases are ripe for trial and are included for trial in the special list to 4.2.2009 and that WPC 2591/09 4 at the time of trial, if the petitioner/plaintiff succeeds in producing more evidence to show that it is possible to locate the properties on the basis of old survey plan, his prayer for measuring out the properties on the basis of old survey plan will be considered at that stage. It is being dissatisfied with the said order, dismissing I.A. No.1688/08, that the petitioner/plaintiff has approached this Court seeking to have Exhibit P15 order set aside and to direct the court below to appoint a new Commissioner for ascertaining the matters requested for in Exhibit P3 application and also to prepare a report and plan in accordance with old survey plan with the assistance of a Taluk surveyor. 4. It is vehemently contended before me by the learned counsel for the petitioner that Exhibits P11 and P12 are sub division plans as per old survey numbers and that the Commissioner could have relied on on those sub division plans for the WPC 2591/09 5 purpose of measuring out the properties as per old survey plan. It is seen that both, in Exhibits P11 and P12, the Assistant Director of Survey and Land Records, Central Survey office, Thiruvananthapuram has endorsed that those are copies prepared during the year 1959 by the concerned officials of Survey Department, but not authenticated to be correct and that for verifying with the originals, the originals are not available now. Such being the endorsement on Exhibits P11 and P12, it is futile to contend that measurement as per old survey plan and sub division sketch should have been made on the basis of Exhibits P11 and P12 survey plans. There is, thus, no merit in advancing a contention that the commission report has to be set aside and that a fresh commission has to be issued when the petitioners are not able to furnish or cause to be produced any plan in relation to the properties as per old survey plan. However, the court below has observed that at the time of trial, if the WPC 2591/09 6 plaintiff succeeds in producing more evidence to show that it is possible to locate the property on the basis of old survey plan, his prayer for measuring out the properties on the basis of old survey plan will be considered at that stage. For the said relief, proper application can be moved before the trial court if at all circumstances enable the petitioners to move such a petition producing more evidence. This writ petition, as matters stand, is devoid of merit and is dismissed. 28th January, 2009 (K.P.Balachandran, Judge) tkv