IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 WP(C).No. 12199 of 2010(O) -------------------------- OS.102/2007 of SUB COURT,KATTAPPANA .................... PETITIONER(S): --------------- SAFJ FLIGHT SERVICES PRIVATE LTD., AIR PORT ROAD, TRIVANDRUM, REPRESENTED BY ITS DIRECTOR SMT.MINI SAJAN VARGHESE, AGED 42 YEARS, W/O.SRI.SAJAN K.VARGHESE, RESIDING AT KANJIRAKATTU HOUSE, POTHUJANAM LANE, KUMARAPURAM, TRIVANDRUM DISTRICT. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY CHIEF SECRETARY TO GOVERNMENT, GOVT.SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, IDUKKI DISTRICT, PAINAVU, KUYILIMALA. 3. THE TAHSILDAR, PEERUMEDU, IDUKKI DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 12199/2010 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE PLAINT IN OS NO.102/2007 BEFORE THE SUB COURT, KATTAPPANA. EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST RESPONDENT IN THE SUIT. EXT.P3: COPY OF THE COMMISSION REPORT DATED 11.6.2008. EXT.P4: COPY OF THE PETITION FILED BY THE FIRST RESPONDENT DATED 22.9.2009. EXT.P5: COPY OF THE I.A.NO.301/09 FILED BY THE FIRST RESPONDENT BEFORE THE SUB COURT, KATTAPPANA, DATED 3.3.2010. EXT.P6: COPY OF THE OBJECTION FILED BY THE PETITIONER AGAINST THE COMMISSION APPLICATION DATED 15.3.2010. EXT.P7: COPY OF THE LETTER ISSUED BY THE ASST. DIRECTOR OF CENTRAL SURVEY, TRIVANDRUM TO THE MANAGER OF THE PETITIONER DATED 10.9.2007. EXT.P8: COPY OF THE ORDER IN I.A.NO.301/09 DATED 23.3.2010. EXT.P9: COPY OF THE PETITION FILED BY THE FIRST RESPONDENT DATED 29.3.2010. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. ----------------------------------- W.P.(C).No.12199 of 2010 ----------------------------------- Dated this the 21st day of June, 2011 JUDGMENT The petitioner filed O.S.No.102 of 2007 on the file of the Court of the Subordinate Judge of Kattappana for declaration of title in respect of the plaint A & B schedule properties and for consequential injunction. The plaint A schedule property has an extent of 6.14 acres. It is stated that the B schedule has an extent of 5 acres. 2. Before the defendants filed the written statement, a Commissioner was appointed who inspected the property after notice to both parties. The Commissioner filed a report dated 11.6.2008. 3. The written statement was filed thereafter. The contention raised in the written statement is that the properties claimed by the predecessors in interest of the WPC No.12199/2010 2 plaintiff are included in Survey No.185/1. The plaint schedule properties are comprised in Survey No.1208 of Vagaman Village. In short, it is a case of disputed identity. According to the plaintiff, the plaint schedule properties were purchased from the assignees under the land assignment proceedings. According to the defendants, the properties now claimed by the plaintiff do not form part of the land assigned under land assignment proceedings, but the properties are situated in different survey numbers which belong to the Government. 4. There was no occasion for the Commissioner who filed the report on 11.6.2008 to inspect the properties with reference to the title deeds and survey records in order to fix the identity of the property, evidently because the dispute regarding identity was not raised at that time. The defendants filed the written statement after the Commissioner filed the report. 5. In these circumstances, I.A.No.301 of 2009 was filed by the defendants to appoint a Commissioner to identify the WPC No.12199/2010 3 plaint schedule properties with reference to the plaint records and with reference to the land assignment records. The court below allowed the application as per the order dated 23rd March, 2010 which is under challenge in this Original Petition. 6. The learned senior counsel appearing for the petitioner submitted that the defendants did not file any application to set aside or remit the Commissioner's report filed earlier and therefore, the court below was not justified in allowing the application. The counsel also submitted that without setting aside the report filed by the Commissioner appointed earlier, another Commissioner cannot be appointed. The counsel also relied on the decision of the Supreme court in Subhaga and others vs. Sobha and others (2006 (5) SCC 466) in support of the contention that when the Commissioner identified the properties with reference to the boundaries, there is no necessity for an inspection of the property again with reference to the survey records and land assignment records. WPC No.12199/2010 4 7. The learned Senior Government Pleader supported the order passed by the court below and submitted that without identification of the property, the questions involved in the suit cannot be completely and finally adjudicated upon by the court. 8. The court below did not set aside the Commissioner's report dated 11.6.2008. In fact, the question of identification of the property was not referred to the Commissioner earlier. Therefore, there was no impediment in appointing the Commissioner for the purpose of identification of the property. No question of setting aside arises in the case. The question is whether appointment of a Commissioner is necessary. In the nature of the dispute involved in the case, I am of the view that it is absolutely necessary to identify the properties with reference to the relevant records. Therefore, it cannot be said that the order passed by the court below is illegal or unsustainable. Now the question arises whether the same Commissioner who inspected the property can be appointed or another Commissioner should be appointed. There is no impediment in WPC No.12199/2010 5 appointing the same Commissioner who filed the report dated 11.6.2008. The learned Senior Government Pleader also submitted that the defendants have no objection in appointing the same Commissioner. For the aforesaid reasons, no interference is called for in the order impugned except that the same Commissioner who filed the report dated 11.6.2008 shall be appointed. The Original Petition is disposed of accordingly. K.T.SANKARAN JUDGE csl