IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 WP(C).No. 29621 of 2008(B) -------------------------- PETITIONER(S): --------------- ABDUL RASHEED, S/O. IBRAHIM KUNJU, KADAYIL VEEDU, WRITTEN AS VARUVILAKATH VEEDU, MANKOTTU KONAM, CHITTUVEETTU MURI, THOLICODE VILLAGE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------- 1. SHAILA BEEGUM, D/O. SALIKATHU BEEVI, REJULA MANZIL, THOLICODE, CHITTUVEETTU MURI, THOLICODE VILLAGE, POWER OF ATTORNEY - MOHAMMED SALIH, S/O. AMEEN PILLAI, THENGU VILA PUTHEN VEEDU OF -DO- 2. MUHAMMED SHAMNAD, S/O. SHAHUL HAMEED, SHAHIDE MANZIL, POTTANCHIRA, CHEERANIKKARA, THOPPU MURI, THEKKADA VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. (C ) NO. 29621 of 2008 * * * * * * * * * * * * * * * * * * Dated: 17-10-2008 JUDGMENT Petitioner who is the defendant in O.S. 211 of 2007 on the file of the Munsiff's Court, Nedumangad filed I.A. No. 572 of 2008 for the appointment of a Commission to identify the counter claim schedule property. Ext.P3 is the said application which has been dismissed as per Ext.P4 order dated 13-3-2008. 2. The aforementioned suit instituted by the respondents herein is one for demarcation of the boundary of the properties of both the plaintiffs and the defendants and for constructing a boundary wall on the basis of Ext.C3 plan prepared by the Advocate Commissioner in an earlier suit conducted between the same parties filed as O.S. 238 of 1996 before the same court. The petitioner herein had filed a counter claim in the present suit and sought for declaration of title and for fixing the boundary and also for consequential injunction. According to the petitioner it was to identify the counter claim schedule property that he applied for issue of a commission and the court below erred in not allowing the said prayer. 2. It is an admitted fact that in the earlier suit W.P. (C ) NO. 29621 of 2008 -:2:- between the same parties filed as O.S. 238 of 1996 Ext.C3 plan prepared by the Advocate Commissioner and it was on the strength of that plan that the earlier suit was decreed and even the boundary was fixed as per Ext.C3 plan. The court below has observed that in Ext.C3 plan both the properties have been clearly shown with separate boundaries. It was for putting up the compound wall that the present suit has been filed. Except contending that the properties are different, the petitioner had not substantiated the said contention which in the particular facts and circumstances of the case cannot be upheld. The court below was therefore right in rejecting the petition filed by the petitioner for issue of a fresh commission and plan. The Writ Petition fails and it is accordingly dismissed. Dated this the 17th day of October 2008. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani.