IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 33644 of 2008(E) -------------------------- OS.1021/2004 of PRL.M.C.,TRIVANDRUM .................... PETITIONER(S): ------------------------- S.SURESH KUMAR, AGED 34 YEARS, S/O.LATE S.SREEDHARAN, ANAND BHAVAN, PERUKAVU P.O., THIRUVANANTHAPURAM. BY ADVS. MR.RAM MOHAN.G., MR.G.P.SHINOD, MR.MANU V. RESPONDENT(S): -------------------------- 1. S.THULASIDHARAN, AGED 30 YEARS, S/O.SADASIVA PANIKER, RAVEENDRA SADANAM, PERUKAVU P.O., THIRUVANANTHAPURAM. 2. K.B.BINDHU, AGED 26 YEARS, W/O.THULASIDHARAN, RAVEENDRA SADANAM, PERUKAVU P.O., THIRUVANANTHAPURAM. R1 & R2 BY ADVS. MR.L.MOHANAN, SMT.LIGEY ANTONY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33644/2008 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.1021/2004 OF THE MUNSIFF COURT, THIRUVANANTHAPURAM. P2: COPY OF THE WRITTEN STATEMENT IN O.S.NO.1021/2004. P3: COPY OF THE COMMISSION REPORT. P3(A): COPY OF THE PLAN FILED ALONG WITH EXT.P3 REPORT. P3(B): COPY OF THE RESURVEY PLAN ALONG WITH EXT.P3 REPORT. P4: COPY OF THE OBJECTION FILED BY THE RESPONDENTS TO THE COMMISSION REPORT. P5: COPY OF THE ORDER DTD. 24/07/2008 IN O.S.NO.1021/2004 REMITTING THE COMMISSION REPORT. P6: COPY OF THE COMMUNICATION ISSUED BY THE SUPERINTENDENT OF SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM TO THE PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.33644 of 2008 - E --------------------------------- Dated this the 2nd day of July, 2009 J U D G M E N T This writ petition is filed seeking the following reliefs: “i) To set aside Ext.P5 order. ii) To direct the court below to dispose of the original suit on the basis of the evidence already adduced by both the parties.” 2. Petitioner is the plaintiff in O.S.No.1021/2004 on the file of the Principal Munsiff Court, Thiruvananthapuram. Suit is one for putting up boundary and for injunction. Respondents are the defendants in the suit. A commissioner appointed by the court with the assistance of a surveyor conducted a local inspection, measured the suit properties and filed a report and plan to enable the court to adjudicate the issues arising for determination. Serious objections were raised by the defendants contending that the measurement made was not in accordance with the documents and survey records. In the enquiry over the objections to the report and plan the commissioner and the surveyor were examined. The learned Munsiff after examining W.P.(C).No.33644 of 2008 - E 2 the materials produced in the enquiry passed Ext.P5 order setting aside the report and plan holding that in the nature of the relief claimed in the suit, i.e., putting up of boundary, a plan has to be prepared in accordance with the resurvey plan which has become final. Propriety and correctness of Ext.P5 order is impeached by the petitioner/plaintiff invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. The learned counsel appearing for the petitioner submitted that the view taken by the learned Munsiff that preparation of a plan after measuring the property in accordance with the resurvey plan is not at all required to sustain the relief claimed for putting up a boundary and that has to be determined with reference to the documents produced by the plaintiff showing his right for putting up a boundary. On the other hand, learned counsel for the respondent/defendant contended that there is no impropriety in the impugned order and the remission of the commission report ordered by the learned Munsiff does not warrant any interference. After having heard the counsel at W.P.(C).No.33644 of 2008 - E 3 length and taking note of the materials produced with reference to Ext.P5 order, I find that the impugned order cannot be sustained for more than one reasons. It appears that the learned Munsiff was under a misconception that since the resurvey has become final, a plan in accordance with the resurvey records is essential to examine the question whether the plaintiff is entitled to the relief of putting up the boundary sought for in the suit. The relief claimed in the suit has no connection with the finalization of the resurvey plan or whether the parties have any disputes as to the resurveying of their lands. Entitlement of the plaintiff for the relief has to be examined with reference to the documents of title produced by him. The measurement of the property with reference to the title deeds has been carried out by the commissioner, against which the court too has not found any sustainable objection. That being so, it was not correct to discard that report and plan on the ground a fresh report on the basis of a resurvey plan is necessary. No objection other than the plan was not prepared in accordance with the resurvey plan, is considered by the court for setting it aside. That objection W.P.(C).No.33644 of 2008 - E 4 already indicated has no relevance. In the objections filed by the defendant also such a ground is not canvassed. At the most, what they have stated is that the measurement has not been done with reference to the resurvey plan. That objection is also not substantiated, if we go by Ext.P5 order passed by the learned Munsiff. Ext.P5 order is liable to be set aside, and I do so. The learned Munsiff is directed to examine the question afresh and pass appropriate orders on the acceptability of the commission report and plan. The writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-