IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).NO. 15289 OF 2010(O) ---------------------------------------- OS.101/2007 OF MUNSIFF COURT, TIRUR .................... PETITIONER(S): ------------------------ PARUTHIKUNNATH MOOSA,HAJI'S SON MOIDEEN KUTTY,PONMUNDAM AMSOM,ADRUSSERY DESOM, TIRUR TALUK. BY ADV. SRI.TOM K.THOMAS RESPONDENT(S): ------------------------ 1. PARUTHIKUNNAN HASSAN,S/O.MOOSA HAJI, PONMUNDAM AMSOM,ADDRUSSERY DESOM,TIRUR TALUK. 2. FATHIMA,W/O.PARUTHIKUNNAN HASSAN, PONMUNDAM AMSOM,ADDRUSSERY DESOM, TIRUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.15289 of 2010 ==================================== Dated this the 19th day of May, 2010 J U D G M E N T Writ Petitioner is defendant in O.S.No.101 of 2007 of the court of learned Munsiff, Tirur which is a suit for fixation of boundary instituted by the respondents. According to the respondents there is no fixed boundary in between properties of themselves and the petitioner. During the course of proceeding on the application of respondents an Advocate Commissioner assisted by a retired Surveyor inspected the properties on 23.05.2007 and 09.07.2007 and submitted Ext.P3, report. Later petitioner filed Ext.P5, application to remit that report stating that properties of himself and respondents lie at different levels and that western boundary of the property of respondents has not been identified by the Advocate Commissioner. Level difference stated in the written statement has not been reported. Learned Munsiff dismissed Ext.P5, application as per Ext.P6, order giving opportunity to the petitioner to raise the issue in the course of trial and observing that if the question raised is found relevant the issue regarding remission of report of the Advocate Commissioner W.P(C) No.15289 of 2010 -: 2 :- can be considered at that stage. That order is under challenge in this Writ Petition. Learned counsel for petitioner contends that the only dispute is regarding western boundary of the property of respondents and regarding that, Advocate Commissioner has not mentioned anything in Ext.P3, report. It is also contended by learned counsel that even in the written statement level difference between the properties has been highlighted by the petitioner. 2. It is seen from Ext.P3, order that before the Advocate Commissioner along with the Surveyor inspected the properties on 25.05.2007 and 09.07.2007 either notice was given to the counsel or intimation was given at the residence of petitioner but he did not even turn to the place of inspection. Advocate Commissioner has reported that on 09.07.2007 at the fag end of his proceeding petitioner came there but not in a mood to co-operate with the Advocate Commissioner and Surveyor and instead petitioner even removed the stump installed by the Surveyor after measurement. Advocate Commissioner also reported in Ext.P3 and accompanying plan that plots A and A1 belonged to respondent No.1 while plots A2 and A3 belonged to respondent No.2. Plots D and D1 are the property belonging to the petitioner. Property on the east of plots A2 and A3 was found to be at a W.P(C) No.15289 of 2010 -: 3 :- higher level. 3. It is not a case were the inspection conducted by the Advocate Commissioner was without notice to the petitioner. He had opportunity to co-operate with the Commissioner and point out what he called western boundary of property of respondents which he failed to do. In spite of that, the court below has observed that if objection of the petitioner is relevant the same can be considered at the time of trial of the case and Ext.P5, application of petitioner was dismissed with the above observation. If that be so it is open to the petitioner to adduce evidence in respect of the contentions he raised and if it is relevant it is well within the power of the court below to set aside Ext.P3, report and depute another Commissioner or remit the report to report on the matters suggested by the petitioner. There is no reason why this Court should interfere under Article 227 of the Constitution of India at this stage. Writ Petition fails and it is dismissed. THOMAS P. JOSEPH, JUDGE. vsv