IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 35797 of 2007(J) -------------------------- PETITIONER: ------------ LATHEEF, S/O.LATE N.SULTHAN PILLAI, OTTATHENGUM VILAYIL, CHUNAKKARA SOUTH, CHUNAKKARA VILLAGE. BY ADV. SRI.R.RAMADAS RESPONDENTS: ------------- 1. MUHAMMED MUSTHAFA RAWTHER, OTTATHENGUM VILAYIL, CHUNAKKARA SOUTH, CHUNAKKARA VILLAGE, CHUNAKKARA PO, PIN-690 534. 2. SUHARA BEEVI, W/O.MUHAMMED MUSTHAFA RAWTHER, OTTATHENGUM VILAYIL, CHUNAKKARA SOUTH, CHUNAKKARA VILLAGE, CHUNAKKARA PO, PIN-690 534. 3. TAHA, OTTATHENGUM VILAYIL, CHUNAKKARA SOUTH, CHUNAKKARA VILLAGE, CHUNAKKARA PO, PIN-690 534. BY ADV. DR.K.P.KYLASANATHA PILLAY FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.35797/2007 EXT.P1 TRUE COPY OF THE ORDER DATED 20.11.2007 IN I.A.NO.1732/07 IN O.S.NO.465/89 OF THE MUNSIFF COURT, MAVELIKKARA. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.35797 of 2007 ------------------------------- Dated this the 12th June, 2008. J U D G M E N T First defendant in O.S.No.465 of 1989, on the file of the Munsiff Court, Mavelikkara, is the petitioner. Respondents 1 and 2 are the plaintiffs and 2nd defendant is the 3rd respondent. Suit is for declaration of the title of Item No.1 of the plaint schedule property, for fixing its southern boundary, for recovery of possession of item No.2 of plaint schedule property, and also for permanent prohibitory injunction in respect of Item No.3 of the plaint schedule property. The suit was originally decreed by the trial court. A.S.No.18/1993 was filed by the petitioner before Additional District Court, Mavelikkara. First appellate court found that Exts.C1(a) plan relied on by the trial court cannot be relied on, and, therefore, set aside the same and directed plaintiffs to take out a commission to fix the property based on re- survey, and to prepare a plan based on re-survey. That judgment was challenged before this Court in F.A.O.110/2004. This Court confirmed the order of remand and found that a fresh plan is to be prepared in W.P.(C) No.35797/2007 2 accordance with the re-survey plan. Thereafter, trial court appointed a Commissioner who submitted Ext.C2 report and Ext.C2(a) plan. Respondents 1 and 2, the plaintiffs, filed I.A.No.1732/07, an application to set aside the report and plan. Under Ext.P1 order, learned Munsiff allowed the application and set aside Exts.C2 and C2 (a), report and plan. That order was passed after appreciating the evidence of the Commissioner who was examined as PW.2 and the surveyor who was examined as PW.3. Ext.P1 order is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for petitioner and respondents 1 and 2 were heard. 3. Though a decree was granted in favour of respondents 1 and 2, that decree was set aside, as it was found that plaint schedule properties were not identified and demarcated with reference to the re-survey plan. The suit was remanded for demarcation of the properties, with reference to re-survey plan, after setting aside the original report and plan. As a result of Ext.P1 order passed by the learned Munsiff, plaintiffs cannot get a decree as the W.P.(C) No.35797/2007 3 property was not identified or demarcated, as directed by the First appellate court in the order of remand. Even when the report and paln were set aside, no other commissioner was appointed to prepare a report and plan, as directed by the First appellate court. 4. The learned counsel for the petitioner pointed out that virtually the dispute was settled by the court in Ext.P1 order. There is force in the submission. The question whether there is encroachment and whether the disputed portion forms part of the encroached area are all to be finally decided by the court on the evidence. It should not have been decided in I.A.No.1732/07. Learned Munsiff rejected Ext.C2 report and Ext.C2(a) plan based on the assumption that respondents would not have allowed petitioner to put up a building, in such a way that water from the building would fall in their property. These are all matters to be decided at the final stage of the suit. If the court is not satisfied with the correctness of the report because of the omissions, the proper course would have been to remit the report back to the Commissioner to file a further report in the light of the objections stated in I.A.No.1732/2007. In such circumstances, Ext.P1 order is set aside. Learned Munsiff is W.P.(C) No.35797/2007 4 directed to remit Ext.C2 report and Ext.C2(a) plan back to the Commissioner to file a further report, in the light of the objections raised in I.A.No.1732/2007. Commissioner shall consider the objections raised in I.A.No.1732/2007, in the light of the finding of learned Munsiff in Ext.P1 order, and file a further report and plan. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.