IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 6423 of 2009(O) ----------------------------------- OS.377/2003 of MUNSIFF COURT,VADAKKANCHERRY .................... PETITIONER(S): ----------------------- 1. DAKSHAYANI AMMA, W/O.LATE ARAVINDAKSHA MENON, PARUVAKKATTU HOUSE, CHOONDAL VILLAGE, CHOONDAL DESOM, THALAPPILLY TALUK. 2. MANOJ, S/O.LATE ARAVINDAKSHA MENON, PARUVAKKATTU HOUSE, CHOONDAL VILLAGE, CHOONDAL DESOM, THALAPPILLY TALUK. BY ADVS.MR.P.RADHAKRISHNAN (1) MR.MADHU RADHAKRISHNAN RESPONDENT(S): ------------------------ 1. INDIRA DEVI, D/O.MEENAKSHI AMMA, PARUVAKKATTU HOUSE, CHOONDAL VILLAGE, CHOONDAL DESOM, THALAPPILLY TALUK. 2. AJITH MENON, S/O.INDIRA DEVI, PARUVAKKATTU HOUSE, CHOONDAL VILLAGE, CHOONDAL DESOM, THALAPPILLY TALUK. 3. REMA PANICKER @ REMADEVI, D/O.MEENAKSHI AMMA, PARUVAKKATTU HOUSE, CHOONDAL VILLAGE, CHOONDAL DESOM, THALAPPILLY TALUK. 4. ANITHA, D/O.LATE ARAVINDAKSHA MENON, PARUVAKKATTU HOUSE, CHOONDAL VILLAGE, CHOONDAL DESOM, THALAPPILLY TALUK. REP.THROUGH POWER OF ATTORNEY HOLDER, MANOJ S/O.LATE ARAVINDAKSHA MENON PARUVAKKATTU HOUSE, CHOONDAL VILLAGE, CHOONDAL DESOM, THALAPPILLY TALUK. R1 & R2 BY ADVS.MR.G.SREEKUMAR (CHELUR) R1 & R2 BY MR.SAJITH KUMAR KANGHINGHAT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6423/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT OS. NO.377/03 . P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS. P3:- COPY OF THE SKETCH ISSUED BY THE TAHSILDAR. P4:- COPY OF THE APPLICATION FILED BY THE PLAINTIFFS FOR MEASUREMENT OF THEIR PROPERTY. P5:- COPY OF THE APPLICATION IA. NO.2105/08 FOR SETTING ASIDE THE COMMISSION REPORT. P6:- COPY OF THE ORDER DTD. 6.12.08 IN IA. 2105/08 IN OS. 377/03. TRUE COPY P.S. TO JUDGE tss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.6423 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 19th August, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To issue a writ of certiorari calling for records leading to passing of Ext.P6 order and set aside the same. 2. To issue a writ of mandamus or any other writ order or direction to reconsider Ext.P5 and pass a reasoned speaking order considering the objections raised by the petitioners herein. 3. To issue a writ of mandamus to direct the court below to give appropriate directions to the advocate commissioner to fix the boundaries only as per the resurvey number. 4. To pass such other writ, order or direction as this Hon'ble court may deem fit and proper to grant on the facts and in the circumstances of the case. 5. To award the costs of the writ petition. 2. Petitioners are the defendants in O.S.No.377 of 2003 on the file of the Munsiff Court, Wadakkanchery. Suit is for fixation of boundary, and the respondents 1 and 2 are the plaintiffs and 3rd and 4th respondents, codefendants with the petitioners. Resisting the suit claim the defendants filed a written statement in which they also W.P.C.No.6423/09 - 2 - raised a counter claim for fixation of boundary of their property and for mandatory injunction. An Advocate Commissioner appointed by the court, after conducting local inspection and measuring out the property with the assistance of a surveyor, prepared a report and plan. Defendants filed objections to the report and plan seeking for setting aside the report and remitting it for fresh consideration. The learned Munsiff, after hearing both sides, negatived the objections, but with the reservation that if sufficient grounds are made out, a different view will be taken. Presumably the court was making a clarification that at the stage of trial if the objections are substantiated, the question of validity of the report and plan prepared by the Commissioner would be considered afresh. P6 is the copy of that order. Propriety and correctness of 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 counsel on both sides. Learned counsel for the petitioners/defendants 1 and 2 submitted that the court below has not appreciated the objections raised to the commission report and plan and the impugned order, if allowed to stand, would cause serious prejudice and injury to the defendants. Though the defendants sought W.P.C.No.6423/09 - 3 - for measuring out their property, it is submitted, the Commissioner did not carry out the measurement of that property and, further the measurement had been carried out with reference to the old survey and plan. On the other hand, learned counsel for the respondents 1 and 2/plaintiffs submitted that the learned Munsiff has reserved the right of the defendants to substantiate their objections to the commission report and plan at the stage of trial and, so much so, no prejudice will be caused to them by P6 order. Though the expression used by the learned Munsiff as a clarification to the observations made in P6 order is not clear, as already indicated, it could be understood only as reserving the right of the defendants to substantiate their objections to the commission report and plan at the stage of trial. In case the defendants take steps to examine the Advocate Commissioner and the Surveyor, who prepared the report and plan, at the stage of trial, and if the court finds on such examination that the objections raised by the defendants have any merit, needless to point out, appropriate orders have to be passed on the merit of the report and plan. The court below will also advert to and consider the grievance canvassed by the defendants who in their written statement have set up a counter claim for fixation of their W.P.C.No.6423/09 - 4 - boundary that the Commissioner has not measured their property in adjudging the report and plan. Subject to the above observation, the Writ Petition is closed. srd S.S. SATHEESACHANDRAN, JUDGE