IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WP(C).No. 37988 of 2007(V) ----------------------------------------- PETITIONER: --------------------- SURESH, S/O.LATE NADUKALATHIL RAMADASAN VAIDYAR, ELAMBULASSERY POMBRA IN OTTAPALAM TALUK. BY ADV. SRI.E.R.VENKATESWARAN SRI.R.SREEHARI RESPONDENT: ----------------------- JANAKI, D/O.GOPALAN VAIDYAR, RESIDING AT RANJITH BHAVAN, MUTHUKADU POST, NILAMBUR TALUK. BY ADV. SRI.R.S.KALKURA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37988/2007 V APEPNDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF JUDGMENT IN WP(C) NO.33251/04 DTD.26/06/2007. EXT.P2: COPY OF THE REPORT DTD. 7/06/1999 FILED BY THE ADVOCATE COMMISSIONER IN OS.NO.71/1997 OF SUB COURT, OTTAPALAM. EXT.P2(A): COPY OF THE PLAN FILED ALONG WITH EXT.P2. EXT.P3: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.2122/07 IN O.S.NO.71/97 OF SUB COURT, OTTAPALAM. EXT.P4: COPY OF THE OBJECTION FILED IN I.A.2122/07 IN O.S.NO. 71/97 OF SUB COURT, OTTAPALAM. EXT.P5: COPY OF ORDER PASSED IN I.A.2122/07 IN O.S.71/97 OF SUB COURT, OTTAPALAM DTD. 1/11/2007. /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 37988 OF 2007 = = = = = = = = = = = = = = = Dated this the 29th day of January, 2008. J U D G M E N T This writ petition is filed seeking to set aside the order in I.A.2122/07 in O.S.71/97. It was an application filed by the plaintiff in the suit for remitting the Commissioner's plan and report. The Court below held that there was an earlier application filed for setting aside the Commissioner's report which was dismissed by a considered order and the said order has become final and therefore this petition cannot be entertained. After hearing both sides I feel interference with the order is not necessary for the following reasons. 2. The learned counsel or the writ petitioner has brought to my notice the Commissioner's report, i.e., at page 17 and 18 of Ext.P2. The Commissioner has reported that a survey plan is prepared and submitted but there were survey stones laid by the Forest Department and therefore if that is to be considered the assistance of the Forest Surveyor may W.P.C 37988 OF 2007 -:2:- be necessary. So the learned counsel would submit it is necessary to remit the Commissioner's plan and report for the said purpose. 3. The suit O.S.71/97 is filed for recovery of possession on the strength of plaintiff 's title. Meanwhile the defendants had filed a suit for injunction which is pending as O.S.161/98 before the very same Court. There is no dispute between the parties with respect to the subject matter of the suits. The subject matter of the suit in both the cases are one and same property. So what is to be considered in a suit of this nature is if the plaintiff is able to establish his title to and entitlement to be in possession of the property, necessarily he will be entitled to recovery of possession. Though the other suit is for injunction a larger question may arise because the suits are tried jointly therefore being a suit for recovery of possession on the strength of title, if the Forest Department has found that some lands are vested in the Forest it is a matter that has to be adjudicated between the Forest Department and the affected party. If the W.P.C 37988 OF 2007 -:3:- litigation is over by adjudicating this question there need not be a plan with the assistance of the Forest Surveyor for the reason any decision taken in the suit will not be binding the Forest Department as they are not parties to the suit. Therefore in the fitness of things I think there is no further necessity for a fresh Commissioner's plan and report in the matter and therefore the writ petition is dismissed. However, the Court below is directed to try and dispose of the matter as expeditiously as possible after affording equal opportunities to both the sides. M.N. KRISHNAN, JUDGE. ul/-