IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WP(C).No. 37251 of 2007(I) -------------------------- (AGAINST THE ORDER DATED 22/12/07 IN I.A.866/07 IN OS.168/2003 of MUNSIFF COURT, PERUMBAVOOR) ................................. PETITIONER: --------------------- AMMINIKUTTY AMMA, POKKATTU HOUSE, NOOLELI KARA ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.B.JAYASANKAR RESPONDENT: ------------------------- SARASWATHY AMMA,POKKATTTU HOUSE, NOOLELI KARA,ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.T.N.ARUNKUMAR (PERUMBAVOOR) SRI.T.K.SAJEEV THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37251/2007 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY SAID APPLICATION NAMELY I.A.NO.943/03 FILED BY THE PLAINTIFF/RESPONDENT IN O.S.NO.168/03. EXT.P2: COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN TO EXHIBIT P1 APPLICATION. EXT.P3: COPY OF THE INTERIM REPORT DTD. 19/05/05 FILED BY THE ADVOCATE COMMISSIONER. EXT.P4: COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER. EXT.P5: COPY OF THE SKETCH FILED BY THE ADVOCATE COMMISSIONER. EXT.P6; COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE COMMISSION REPORT AND SKETCH. EXT.P7: COPY OF I.A.NO.866/07 FILED BY THE PETITIONER FOR SETTING ASIDE EXHIBITS P4 & P5. EXT.P8: COPY OF THE OBJECTION DTD. 25/06/07 TO I.A.NO.866/07 BY THE REPONDENT. EXT.P9: COPY OF I.A.NO.2371/07 IN O.S.NO.168/03 ON THE FILES OF THE MUNSIFF COURT PERUMBAVOOR FILED BY THE PETITIONER. EXT.P10: COPY OF THE ORDER DTD.22/10/2007 IN I.A.NO.866/07 IN O.S.NO.168/03 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 37251 OF 2007 =========================== Dated this the 29th day of May, 2008 JUDGMENT Petitioner is the defendant in O.S.168/2003 on the file of Munsiff's Court, Perumbavoor. The suit was filed for fixation of boundary. The court originally appointed a Commissioner. Commissioner submitted Ext.P3 interim report stating that for identification of the property survey plan with field measurement book is necessary. Thereafter the court granted assistance of District Survey Superintendent. Commissioner inspected the property along with District Survey Superintendent. Commissioner thereafter submitted Ext.P4 report. In Ext.P4 report, Commissioner has stated that though defendant submitted a work memo to identify the property with reference to the documents, defendant did not take the Commissioner and the Survey Superintendent to the property and therefore he could not execute the work memo as sought for. W.P.(C)37251/07 2 Petitioner filed I.A. 866/07 to set aside the report. Respondent submitted Ext.P9 objection. Learned Munsiff under Ext.P10 order dismissed the application. It is challenged in this petition under Article 227 of the Constitution of India. 2. Learned counsel appearing for petitioner and respondent were heard. 3. The argument of the learned counsel appearing for petitioner is that suit is one for fixation of boundary and respondent is claiming right under some of the sharers under the partition deed of 1964, without identifying the property obtained by the petitioner, boundaries cannot be fixed. There is force in the submission. Even if the report as sought for cannot be set aside, learned Munsiff should have remitted the report to the Commissioner to identify the property with reference to the title deed of the petitioner. As it is not done, Ext.P10 order is quashed. Learned Munsiff is directed to remit the objection filed by the petitioner to the same Commissioner to submit a W.P.(C)37251/07 3 further report in the light of the objections raised therein at the expense of the petitioner. Learned Munsiff may dispose the suit as expeditiously as possible. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006