IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 1605 of 2009(N) ------------------------------------ OS.332/2006 of MUNSIFF COURT,ALUVA .................... PETITIONER/DEFENDANT: ------------------------------------- AHAMMED USMAN @ USMAN, S/O. AHAMMED, RESIDING AT KATTUPARAMBIL, THAIKKATTUKARA, ALUVA WEST VILLAGE. BY ADV. MR.S.B.PREMACHANDRA PRABHU RESPONDENT/PLAINTIFF: ------------------------------------- KATHUR RAJEE MATHEW, S/O. THOMAS MATHEW, HOUSE NO.2, IST CROSS STREET, T.V.K. NAGAR, MUTALIYARPET, PONDICHERRY. BY ADV. MR.VELLAYANI SUNDARARAJU MR.K.J.VINCENT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 07/07/2009 DELIVERED THE FOLLOWING: WP(C) NO. 1605/2009-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEED NO.5794/2004 OF ALIUVA S.R.O. DATED 30/11/2004 IN FAVOUR OF PETITIONER. EXT.P2: COPY OF THE SALE DEED NO.3107/1997 OF ALUVA S.R.O. DATED 22/09/1997 IN FAVOUR OF THE RESPONDENT. EXT.P3: COPY OF THE PLAINT IN O.S. NO.332/2006 OF MUNSIFF COURT, ALUVA. EXT.P4: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S. NO.332/2006 DO. EXT.P5: COPY OF THE I.A. NO.76/2007 IN O.S.332/2006 FILED BY THE PLAINTIFF. EXT.P6: COPY OF THE OBJECTION FILED BY THE DEFENDANT IN I.A. NO.76/2007. EXT.P7: COPY OF THE COMMISSION REPORT AND SKETCH. EXT.P8: COPY OF THE I.A. NO.304/2008 IN O.S. NO.332/2006 FILED BY THE PETITIONER. EXT.P9: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.304/2008. EXT.P10: COPY OF THE ORDER IN I.A.304/2008 DATED 10/11/2008 IN O.S. NO.332/2006 OF MUNSIFF COURT, ALUVA. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE SALE DEED NO.3107/97 DATED 22/9/1997 OF S.R.O ALUVA. EXT.R2: COPY OF THE RECEIPT DATED 06/02/2006. EXT.R3: COPY OF THE CERTIFIED OF RESURVEY SKETCH ISSUED BY THE COMPETENT AUTHORITY TO PETITIONER. //TRUE COPY// P.S. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.1605 OF 2009 (N) ----------------------------------- Dated this the 7th day of July, 2009 J U D G M E N T Petitioner is the defendant in O.S.No.332/2006 on the file of the Munsiff's Court, Aluva. Respondent is the plaintiff and the suit is one for perpetual prohibitory injunction. Ext.P3 is the copy of the plaint in the suit. Respondent sought for a decree of injunction against the petitioner herein/the defendant in the suit in respect of a property having an extent of 2.83 Ares (7 cents) in Block No.34 Resurvey No.476/3 of Aluva Village claiming its title and possession under a sale deed executed in his favour on 22.9.1997. Copy of the sale deed relied by the plaintiff for the suit claim is Ext.P2. The defendant resisted the claim setting forth a rival title and possession over 2.42 Ares (6 cents) of land comprised in the same survey number on the basis of a sale deed executed in his favour on 30.11.2004. Copy of the sale deed in favour of the defendant is Ext.P1. The identification of the property WPC.1605/09 2 claimed by the plaintiff in the suit being disputed by the defendant, an application for appointment of a Commission to identify the property was taken by plaintiff and Commissioner after conducting local inspection with the assistance of a surveyor filed a report and plan before the court. Copy of the report and plan is Ext.P7. The defendant thereupon moved an application (Ext.P8) raising serious objections for setting aside Ext.P7 report and plan. The learned Munsiff, after hearing both sides dismissed Ext.P8 application under Ext.P10 order. Correctness and propriety of Ext.P10 order is impeached by the defendant in the present petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the constitution of India. 2. I heard the counsel on both sides. Normally, this Court will be very reluctant to interfere with an order passed on the merit of a commission report obtained by a subordinate court, in exercise of its visitorial jurisdiction under Article 227 of the Constitution of India, but, where patent infirmities or irregularities are noticed in the impugned order, which is WPC.1605/09 3 likely to cause miscarriage of justice, it has to intervene and pass appropriate orders for correcting such infirmities. After hearing the counsel on both sides at length with reference to the materials produced in the petition and also perusing Ext.P10 order, I find the learned Munsiff has made some observations while disposing of Ext.P8 application, the petition moved by the defendant for setting aside the commission report and plan, which tend to show that a prejudged view on the identification of the plaint property, which is seriously disputed, has been arrived at on the basis of the report and plan prepared by the Advocate Commissioner. The learned Munsiff has observed as follows: “The report and sketch prepared by the Commissioner clearly discloses the identity of the plaint schedule as well as the property of the petitioner/defendant as that being so, for the purpose of the adjudication the report and plan are sufficient. The suit is for injunction simpliciter.” The learned Munsiff, I do note in having given expression as above, was not expressing a view that the report and plan submitted by the Commission are unimpeachable. But when for the purpose of adjudication of WPC.1605/09 4 the issues raised in the suit, the report and plan are found sufficient for the reason that the identity of the property is borne out by the report and plan it gives an impression as to its acceptability insulating it from any challenge at a later stage in the suit, the trial of which is still to be proceeded with. In this context, reference to Ext.P2 sale deed taken by the plaintiff assume some significance. The learned Munsiff, it appears, has not taken note that Ext.P2 sale deed was taken by the plaintiff from a builder and the schedule description of the property would indicate that its identification is by reference to some proposed roads and plots, which are yet to be formed. Boundary description of the property shows it is to be demarcated from adjoining plots and proposed roads. Ext.P2 sale deed does not show that identification of the property is by survey measurement. But the plaintiff has sought for identification of the suit property by survey measurement setting forth a case that on all of four sides of that property, survey stones are planted. Commissioner also identified the property with reference to such survey stones planted on four corners of the property. Plaintiff has not WPC.1605/09 5 produced the plan, if any, prepared by the builder for demarcating the plots provided and also the proposed roads. I have adverted to these aspects because the Commissioner has reported that the plaint schedule property forms part of a vacant land with no physical demarcation with the property of the defendant. Demarcation of the property has been made, it appears, only on the basis of the boundary stones which are stated to be survey stones on the four corners of the plaint property. Plaintiff has not sought for identification of the plaint property with reference to the plan, if any, prepared by his builder, but only on the basis of a survey commission. Such being the facts presented in the case, the question whether the property has been correctly identified by survey measurement with reference to the four stones planted in four corners of the property, which are stated to be survey stones, is a matter arising for serious consideration in the suit, and it has to be examined in its trial. I have adverted to the above aspects in view of the observations made by the learned Munsiff in Ext.P10 order which is taken serious exception to by the defendant/the petitioner herein. WPC.1605/09 6 3. The question whether the commission has properly identified the plaint property and whether commission report in the given facts of the case is satisfactory and convincing enough to prove the identification of the property, all these questions have to be considered by the learned Munsiff in the trial of the suit. I do not want to express any opinion on the merit of the report and plan and its acceptability to determine the identification of the suit property. However, the objections raised by the defendant challenging its acceptability has to be examined by the learned Munsiff in the trial of the suit irrespective of Ext.P10 order holding that sufficient grounds have not been made out for setting aside that report. The learned Munsiff shall also examine the merit of the report and plan with reference to the title deed and the materials produced by both sides, untrammelled by any of the observations in Ext.P10 order. The order impugned having been passed in an interlocutory proceedings, and the suit being only for injunction simplicitor, where the burden is on the plaintiff to establish the identity of the property over WPC.1605/09 7 which the injunction is sought for, no interference with Ext.P10 order is called for, but, as already stated, the acceptability of the report and plan has to be considered in the trial of the suit. Subject to the above observations, this writ petition is disposed. S.S.SATHEESACHANDRAN JUDGE prp