IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 27677 of 2008(T) -------------------------- OS.46/2007 of MUNSIFF'S COURT, HOSDURG .................... PETITIONER(S): -------------------------- 1. K.M.JOSHY, S/O K.M.RAVEENDRAN, KUNHIMANGALATH HOUSE, THATTACHERRY, NILESWAR, KASARGOD DISTRICT. 2. RAMYA K.M., D/O K.M. RAVEENDRAN, RESIDING AT DO... DO... BY ADV. MR.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): ---------------------------- 1. CHERIYA PENNU, W/O. AZHIKODAN KADUNGAN, THATTACHERRY, NILESHWAR, NILESHWAR VILLAGE, HOSDURG TALUK, KASARGOD DIST. 2. A.RAJESH, S/O CHERIYA PENNU, OF DO...DO... THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.27677/2008 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PARTITION DEED DTD. 17/10/2003. P2: COPY OF PLAINT IN O.S.NO.46/07 ON THE FILE OF M.C.HOSDURG. P3: COPY OF WRITTEN STATEMENT FILED BY DEFENDANTS IN O.S.46/07 M.C. HOSDRUG. P4: COPY OF REPORT AND PLAN SUBMITTED BY ADVOCATE COMMISSIONER IN O.S.46/07. P5: COPY OF I.A.NO.991/08 IN OS.46/07 FILED BY PETITIONERS BEFORE M.C. HOSDRUG. P6: COPY OF ORDER IN I.A.991/08 IN O.S.46/07 M.C.HOSDRUG. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.27677 OF 2008 (T) ----------------------------------- Dated this the 20th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to call for the records relating to Exts.P1 to P6. ii. to set aside/quash Ext.P6 order. iii. to remit Ext.P4 to the Advocate Commissioner to identify the plaint schedule property with reference to Ext.P1. iv. to issue such other order or direction as my be deemed appropriate. 2. Petitioners are the plaintiffs in O.S.No.46 of 2007 on the file of the Munsiff Court, Hosdurg. Suit is one for recovery of possession and consequential injunction, and the respondents are the defendants. In the suit, an Advocate commissioner appointed by the court conducted local inspection, measured out the property and filed a report and WPC.27677/08 2 plan with the assistance of a surveyor. Plaintiffs have serious objection to the report. Filing such objection, they requested for remitting the report for fresh consideration. The learned Munsiff, after hearing both sides declined the request of the plaintiffs vide Ext.P6 order. Propriety and correctness of Ext.P6 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 petitioner. Though notice was ordered to the respondents, after service, they have not entered appearance. 4. I heard the counsel for the petitioners. Having regard to the submissions made and the facts and circumstances presented with reference to Ext.P6 order impugned in the petition, I find that it may not be proper and appropriate for this Court to examine the merit of the commission report in exercise of its visitorial jurisdiction. After all, a commission report is only a piece of evidence in a suit which has to be evaluated with respect to other material evidence tendered in WPC.27677/08 3 the case. Taking note that the plaintiffs have not been provided an opportunity to substantiate their objections by examining the commissioner and the surveyor, I find an opportunity to do so can be extended to them at the trial of the suit. I direct the court below to consider the merit of the commission report and plan at the trial of the suit untrammelled by any of the observations made in Ext.P6 order, provided, plaintiffs take steps for examining the Advocate commissioner and also the surveyor to substantiate their objections. Needless to point out, if the Commissioner and surveyor are examined and the court find that the report suffers from some infirmity, appropriate orders have to be passed for curing that infirmity. Subject to the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp