IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 26378 of 2009(O) -------------------------- AGAINST THE ORDER DATED 13 /08 /2009 IN IA 659 /2009 IN OS.31/2005 of MUNSIFF COURT,KAYAMKULAM .................... PETITIONER(S): PETITIONERS/DEFENDANTS ------------------------------------- 1. LALITHAMBIKA, LAVANYAYIL, GURUJI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM FROM LALITHASADANATHIL, MEMANA MURI, OACHIRA VILLAGE. 2. VIDYA, LAVANYAYIL, GURUJI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM FROM LALITHASADANATHIL, MEMANA MURI, OACHIRA VILLAGE. 3. DHANYA, LAVANYAYIL, GURUJI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM FROM LALITHASADANATHIL, MEMANA MURI, OACHIRA VILLAGE. REPRESENTED BY THEIR POWER OF ATTORNEY SRI.T.J.RADHAKRISHNAN, S/O.JANARDHANA KURUP, LAVANYAYIL, GURUJI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): COUNTER PETITIONER/PLAINTIFF ------------------------------------------- GEETHA, W/O.RAJEEV, T.C.24/443/1, SANGEETHA NAGAR, THYCAD VILLAGE, THIRUVANANTHAPURAM FROM LALITHASADANATHIL, MEMANA MURI OCHIRA VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.26378 of 2009 - O --------------------------------- Dated this the 18th day of September, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To call for the records leading to Exhibit P7 order, set aside the same and thereafter allow I.A.No.659/2009 in O.S.No.31/2005 of the Court of Munsiff, Kayamkulam as prayed for, by invoking the powers of this Honourable Court under Article 227 of the Constitution of India.” 2. Petitioners are the defendants in O.S.No.31 of 2005 on the file of the Munsiff Court, Kayamkulam. Suit is one for fixation of boundary and the respondent is the plaintiff. Both parties claim on the basis of a partition deed in respect of A and B schedule properties described in the plaint, submits the learned counsel for the petitioners. In the written statement filed the defendant has no objection in measuring out the property and fixing the boundary in accordance with the partition deed. An application for appointment of an advocate commissioner to measure out the property with the assistance of a surveyor to fix the boundaries of the plaint properties as desired by the respondent/plaintiff, it is submitted by W.P.(C).No.26378 of 2009 - O 2 the counsel, was not objected to by the petitioners/defendants. However, the advocate commissioner deputed to measure out the properties proceeded with measuring the property with reference to resurvey records and not with reference to the partition deed. Petitioners thereupon filed objections to the report and plan. In the enquiry over such objections the commissioner and surveyor were examined and the report and plan prepared by him were exhibited along with the old survey plan and also resurvey plan. The learned Munsiff after considering the materials produced and hearing the counsel on both sides declined the request of the petitioners/defendants for setting aside the report vide Ext.P7 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioners. Having regard to the submissions made and the facts and circumstances presented with reference to Ext.P7 order challenged in the writ petition, I find no notice to the respondent is necessary and it is dispensed with. 4. Learned counsel for the petitioners inviting my attention to the findings entered in Ext.P7 order submitted that certain W.P.(C).No.26378 of 2009 - O 3 portions of the property allotted to the respondent/plaintiff under the partition deed had been shown in the resurvey plan as puramboke land and such portions are now sought to be equally divided with that of the property allotted to the petitioners/defendants. Petitioners/defendants are only interested in retaining the property allotted to them in the partition deed from which no portion of land as per the resurvey plan was shown as puramboke land is the submission of the counsel. Without taking serious note of the objections raised by the petitioners/defendants the court below had negatived their request for having a measurement of the suit properties with reference to the descriptions given in the partition deed and also the old survey records, according to the counsel. 5. The commission report and plan prepared in a suit or proceeding is only a piece of evidence. This Court in exercise of visitorial jurisdiction will not be justified in evaluating the merit of report and plan over which a conclusion is yet to be reached by the trial court and that can be done only on disposal of the suit after a full fledged trial giving both sides to lead evidence in support of their respective case. So much so, it is not proper and appropriate for this Court to examine the objections canvassed by the W.P.(C).No.26378 of 2009 - O 4 petitioners/defendants to the commission report and plan which according to the court below under Ext.P7 order are found to be unacceptable. But I make it clear that the objections canvassed by the petitioners to the report and plan though found not worthy enough to set aside them have to be considered by the court at the trial of the suit, if canvassed at that stage. Reserving the right of the petitioners/defendants to canvass their objections at the trial of the suit, court below is directed to examine the merit of the commission report and plan irrespective of the findings entered in Ext.P7 order. At the trial of the suit, if the court finds there is merit in the objections of the defendants it may pass appropriate orders even for collection of a fresh commission report and plan so that an effective decree can be passed in the suit. With the observations made above, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-