IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 OP.No. 29576 of 2002(U) ----------------------- PETITIONER(S): --------------- KAMALAMMA PILLAI SANTAKUMARIAMMA, MEKKEVILAKATHU VEEDU, ANUCODEU DESOM, KOLLAMCODU VILLAGE BY ADV. SRI.R.S.KALKURA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA,SECRETARIAT, TRIVANDRUM * 2. NARAYANI PILLAI BHAGAVATHI PILLAI, VASANTH, MARUTHOOR DESOM, ATHIYANNOOR, PAKUTHY FROM EZAVERTHATATHU PUTHEN VEEDU, KARODU DESOM, KULATHOOR PAKUTHY 3. VELAYUDHAN PILLAI GANGADHARAN NAIR OF DO.DO. 4. BHAGAVATHI PILLAI NIRAMALAKUMARI, KRISHNAVILASOM BUNGLOW, AYIRAYIL DESOM, KALATHOOR PAKUTHY 5. BHAGAVATHI PILLAI VALSALAKUMARI OF DO.DO . 6. BHAGAVATHI PILLAI SYAMALAKUMARI OF DO.DO . * 7. PADMANABYA PILLAI BALAKRISHNA PILLAI KAMALAVILASOM BUNGLOW, NO.12, WARD V, KARODU PANCHAYATH, ERICHALLOOR DESOM, DELETED KARODU PAKUTHY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R3 TO 6 * CORRECTED AS VELAYUDHAN PILLAI SASIDHARAN PILLAI AS PER ORDER DATED 05/11/2002 IN C.M.P NO.54067/2002. * DELETED AS PER ORDER DATED 05/11/2002 IN C.M.P NO.54067/2002. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J ------------------------------------- O.P No.29576 OF 2002 -------------------------------- Dated this the 18th day of March 2010 ORDER Writ petitioner is the second defendant in O.S No.230 of 1987 on the file of the 1st Additional Munsiff Court, Neyyattinkara. The respondents 2 to 6 herein have filed the above suit seeking declaration of their title, possession, injunction and for putting up of boundary over the suit property which is stated to be having an extent of 7.5 cents. Previously the suit after trial was dismissed. Plaintiffs preferred an appeal challenging the dismissal of the suit. Reversing the dismissal of the suit ,the appellate court remitted the case to the court below with direction to dispose the suit after proper identification of the suit property deputing an advocate commissioner. Such identification was directed to be effected with the assistance of a surveyor and relevant sub division plan over the property. Ext.P1 is the copy of the judgment rendered by the appellate court remanding the case as directed. Pursuant to such remand, an advocate commissioner was deputed by the court below who after local inspection filed a statement that since sub division plan was not produced identification on the basis of the relevant sub division as directed by the court could not be given effect to. In this context, it is to be pointed out that before appointment of the O.P No.29576 OF 2002 Page numbers advocate commissioner, both sides had moved applications the manner in which the commission order to be executed with respect to the identification of the property. The court after considering the objections passed Ext.P2 order giving specific directions in which among other directions identification of the property with reference to the sub division plan was also directed. In the light of the statement filed by the advocate commissioner, after hearing both sides, the court passed an order modifying the earlier directions and issued instructions in what manner the identification has to be made. Ext.P4 is the copy of that order. After a report was filed by the advocate commissioner, the defendant challenged that report contending the report was not prepared in accordance with the directions given in Ext.P1 judgment. In other words, there was no identification of the property with reference to the relevant sub division plan as directed in the remand order was the brunt of the challenge raised by the defendant. The learned Musniff in the light of Ext.P4 order passed earlier negatived the objections raised and declined the request of the defendant to set aside the report and plan. The writ petitioner/second defendant is challenging the propriety and correctness of Exts.P4 and P7 orders invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. O.P No.29576 OF 2002 Page numbers 2. I heard the counsel on both sides. At the time of hearing, it is brought to my notice that during the pendency of the proceedings, this court has passed an order on 14.01.2005 directing the Government Pleader to ascertain and report on the availability of sub division plan in respect of the property involved in the suit. Till date, not report thereof has been filed. At the time of hearing, the learned Government Pleader submitted that the survey plans relating the property are available in the office of Director of Surveys, Survey Department and anyone can apply and get copies from that department on remitting the prescribed fee as per rules. Whatever that be, the preliminary question that emerge for consideration is whether the challenges canvassed in the writ petition over the merit of a commission report in a pending suit is open to challenge invoking the writ jurisdiction of this court. After all a commission report is only one among the pieces of evidence let in a case for adjudicating the controversy arising between the parties in the lis. If at all the defendant has any grievance over the commission report for the reason that it has not been prepared in accordance with the directions in the remand report, that is a matter which has to be agitated in the suit in accordance with law. Exts.P4 and P7 orders cannot be challenged before this court whatever be the directions in Ext.P1 remand order, and no such challenge can be entertained under O.P No.29576 OF 2002 Page numbers the supervisory jurisdiction vested with this court. Reserving the right of the petitioner to canvass his challenges to the report, if any, as provided by law, the petition is closed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// vdv P.A TO JUDGE