IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 6010 of 2009(O) ------------------------- AGAINST THE ORDER IN IA 1378/2008 IN OS.184/2004 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): --------------- APPU @ APPUNNI GUPTAN, S/O. SANKARATHODIYIL PUTHEN VEETIL, KUTTAPPA MOOTHAN, THACHAMPARA AMSOM, PALLIKURUP DESOM, MANNARKAD TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON RESPONDENT(S): --------------- MOITHEENKUTTY, S/O. KALATHUMPADIKKAL MOITHU, THACHAMPARA AMSOM, PALLIKURUP AMSOM, PALLIKURUP DESOM, MANNARKAD TALUK. ADV. SRI.G.SREEKUMAR (CHELUR) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.6010 OF 2009 ------------------------------------------ Dated 6th April 2009 JUDGMENT Plaintiff in O.S.184/2004 on the file of Sub court, Ottappalam filed this petition under Article 227 of Constitution of India challenging Ext.P5 order. Respondent is the defendant. Suit is for recovery of possession on the strength of title. A commission was appointed to identify the plaint schedule property based on the title deeds. Commissioner submitted Ext.P2 report and Ext.P2(a) plan. Petitioner then filed Ext.P3 application (I.A.1378/2008) to remit the report contending that plaint schedule property is not properly identified. Under Ext.P5 order learned Sub Judge, without considering the objection, closed the petition for the time being stating that the mistake, if any occurred, can be corrected in the trial, if petitioner could successfully establish the mistakes. Case of the petitioner is that thereafter petitioner filed Ext.P6 application to examine the commissioner as a witness and though it was allowed, when the WPC 6010/09 2 commissioner is to be examined the court stated that evidence of the commissioner could be recorded only after recording the evidence of the petitioner in the suit. Writ petition is filed contending that without a proper plan and identification of plaint schedule property petitioner cannot get a decree and therefore, it is necessary to properly identify the property and therefore Ext.P5 order is to be quashed. 2. Learned counsel appearing for petitioner and respondent were heard. 3. Paragraph 2 of Ext.P5 order shows that learned Sub Judge has found that the commissioner assisted by the surveyor could not identify the disputed property. In spite of that finding, the report was not remitted back to the commissioner for proper identification of the property. Instead the petition was closed holding that mistake if any, could be corrected at a later stage. 4. Grievance of the petitioner is justifiable because when the petitioner sought for examination of the commissioner and it was allowed, examination was delayed till the examination of the petitioner in the suit. As the suit is for recovery of WPC 6010/09 3 possession on the strength of title, it is absolutely necessary to identify the property based on the title deed. When the learned Sub Judge himself found that plaint schedule property was not identified by the commissioner, I.A.1378/2008 should have been allowed with sufficient directions and the commissioner should have been directed to file a further report. In such circumstances, Ext.P5 order is quashed. Learned Sub Judge is directed to re-consider I.A.1378/2008 and pass appropriate order in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.