IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WP(C).No. 25665 of 2008(E) -------------------------- OS.1722/2001 of III ADDL.MUNSIFF COURT.ERNAKULAM (RENT CONTROL) .................... PETITIONER: ------------ GALFAR INDIA PRIVATE LIMITED, N.H.47, KUNDANNOOR JUNCTION, KOCHI – 682 304 REP. BY ITS AUTHORISED SIGNATORY SRI.K.P.VIJAYAN. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENTS: ------------- 1. JOSEPH, S/O.THIYO, KUMBALARA HOUSE, KUNDANNOOR, MARADU P.O. (DIED) 2. VIRONY, W/O.T.O.JOSEPH, AGED 65 YEARS, KUMBALARA HOUSE, KUNDANNOOR, MARADU P.O. 3. MARY, D/O.T.D.JOSEPH, AGED 40 YEARS, KUMBALARA HOUSE, KUNDANNOOR, MARADU P.O. 4. PAUL ALIAS PAULSON, S/O.T.D.JOSEPH, AGED 39 YEARS, KUMBALARA HOUSE, KUNDANNOOR, MARADU P.O. 5. MARTIN, S/O.T.D.JOSEPH, AGED 37 YEARS, KUMBALARA HOUSE, KUNDANNOOR, MARADU P.O. 6. ROSILY, D/O.T.D.JOSEPH, KUMBALARA HOUSE, KUNDANNOOR, MARADU P.O. 7. ALICE, D/O.T.D.JOSEPH, AGED 30 YEARS, KUMBALARA HOUSE, KUNDANNOOR, MARADU P.O. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.25665 of 2008 ------------------------------- Dated this the 26th August, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India challenging Exts.P11 and P12 orders passed by Munsiff, Ernakulam, in I.A.No.9466 of 2006 and I.A.No.5911 of 2007. I.A.No.9466 of 2006 is an application filed by the defendant-petitioner to set aside the report submitted by the Commissioner. Under Ext.P11 order, learned Munsiff after examination of the Commissioner, remitted the report with a direction to conduct the measurement with the assistance of District Survey Superintendent. Learned Munsiff specifically directed the Commissioner and the District Survey Superintendent, first to fix the entire property comprised in Survey No.552/1 including Survey No.552/2, and, thereafter to fix the property in Survey No.552/2 and then 1.20 acres as per the document No.958/62 and then to measure and fix the properties covered under document No.620/63 and then to fix W.P.(C) No.25665 of 2008 2 the property covered by document No.506/65, and thereafter the properties assigned to the defendant as per the seven documents. It includes document No.1201/1093. 2. The argument of the learned counsel appearing for the petitioner is that Commissioner had tampered with the plan submitted to him by the surveyor and inspite of that learned Munsiff did not set aside the report and plan and instead directed the same Commissioner to execute the work, and, therefore, Ext.P11 order is to be quashed. 3. Under Ext.P11 order, learned Munsiff has given sufficient directions and has also taken precaution. Commissioner cannot do any thing without the assistance of the District Survey Superintendent. Trial Court has given necessary directions as to how the properties are to be identified and located. In such circumstances, I do not find any reason to interfere with Ext.P11 order. When the Commissioner with the assistance of the District Survey Superintendent submits a report and plan, petitioner is entitled to file an objection to the report taking up all the contentions available to him. W.P.(C) No.25665 of 2008 3 4. Under Ext.P12 order, learned Munsiff has dismissed Ext.P7 application. Ext.P7 is an application to appoint an Advocate Commissioner to measure plaint schedule property with the assistance of Taluk Surveyor and to find out the property which was in the possession of the original plaintiff in Old survey No.552/1. A commissioner cannot be directed to find out the possession of the property which was in the possession of the original plaintiff, which cannot be relegated to the Commissioner. The question of possession is to be proved before the court on other evidence. 5. Learned counsel then submitted that Ext.P2 work memo was submitted to the Commissioner which was not considered and therefore atleast a direction may be given to the Commissioner to identify and verify the property covered by document No. 1201/1093, and to measure out the property, as per the resurvey records. Ext.P11 order directs the Commissioner to identify the property and also to verify the property with reference to the documents including the documents in favour of the petitioner. It necessary includes W.P.(C) No.25665 of 2008 4 document No.1201/1093. When direction is to find and identify the properties in Survey No.552/1 and 552/2, necessarily the properties are to be identified with reference to resurvey plan also. In such circumstances, there need not be a further direction. The writ petition is dismissed. Petitioner is entitled to challenge Exts.P11 and P12 orders along with the final judgment, if it goes against him. M.SASIDHARAN NAMBIAR, JUDGE nj.