IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 WP(C).No. 33779 of 2007(U) --------------------------------------- OS.1228/2004 OF I ADDL. MUNSIFF COURT,THRISSUR. .................... PETITIONERS: --------------------- 1. SULOCHANA, AGED 59 YEARS, VARANAMKUDATH HOUSE, PANNIMKULANGARA TEMEPLE ROAD, AYYANTHOLE VILLAGE - DESOM, THRISSUR TALUK. 2. GOPINATHAN, S/O.SULOCHANA, VARANAMKUDATH HOUSE, PANNIMKULANGARA TEMPLE ROAD, AYYANTHOLE VILLAGE - DESOM, THRISSUR TALUK. BY ADV. SRI. SANTHOSH P. PODUVAL, ADV. SMT.RAJITHA.R. RESPONDENTS: ----------------------- 1. VISWAMBHARAN, S/O.VADAKKOOT MUNDAYI GOVINDAN, AYYANTHOLE PANCHAYATH WARD NO.49, H.NO.317, KURINJAKKAL LANE, AYYANTHOLE VILLAGE - DESOM, THRISSUR TALUK. 2. SOBHANA, D/O.VADAKKOOT MUNDAYI GOVINDAN, AYYANTHOLE PANCHAYATH WARD NO.49, H.NO.317, KURINJAKKAL LANE, AYYANTHOLE VILLAGE - DESOM, THRISSUR TALUK. BY ADV. SRI.K.N.PADMAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33779/2007-U: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 1228/04 DTD. 05/04/2004 FILED BEFORE THE MUNSIFF'S COURT, THRISSUR. EXT.P.2: COPY OF THE COUNTER DTD. 22/07/2004 IN R.C.P. NO. 116/2003. EXT.P.3: COPY OF THE I.A. NO. 6062/07 DTD. 05/06/04. EXT.P.4: COPY OF THE COUNTER DTD. 21/07/2004 IN I.A. NO. 77/05. EXT.P.5: COPY OF THE COMMISSIONER'S REPORT IN I.A. NO. 6062/04. EXT.P.6: COPY OF THE SKETCH ANNEXED TO THE COMMISSIONER'S REPORT. EXT.P.7: COPY OF THE APPLICATION I.A. NO. 2946/04 DTD. 22/03/2007. EXT.P.8: COPY OF THE COUNTER IN I.A. NO. 2946/07 DTD. 14/06/2007. EXT.P.9: COPY OF THE ORDER DTD. 05/10/07 IN I.A. NO. 2946/07 IN O.S. NO. 1228/04 OF THE COURT OF THE I ADDITIONAL MUNSIFF OF THRISSUR. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 33779 OF 2007 = = = = = = = = = = = = = = = Dated this the 4th day of January, 2008. J U D G M E N T This writ petition is preferred seeking to set aside the order passed in I.A.2946/07 in O.S.1228/04. It is an application for setting aside the Commissioner's plan and report. The suit is one for an injunction and the plaintiff is claiming 19 cents of property comprised in Sy.No.1046. The defendant is also claiming cents in the very same Sy.No. A reading of the plaint and written statement would reveal that the real dispute between the parties is regarding which is the exact southern boundary of the plaint schedule property. Though the prayer in the plaint is couched in a way only as an injunction simpliciter in order to resolve the controversy between the parties the Court may have to find out regarding the entitlement of the parties with respect to their document the properties claimed by them. For the said purpose it is necessary to measure the properties of both the parties with respect to their respective title deeds. It is also W.P.C 33779 OF 2007 -:2:- averred by the writ petitioner that a portion has been carved out from the property of the plaintiff for the road and it has not been taken note of by the Commissioner. If materials are available that also may be considered. Therefore in order to have a proper Commissioner's plan and report it is desirable that the matter is remitted back to the same Commissioner with the following directions. (1) The Commissioner is directed to measure the properties with respect to the title deeds of the plaintiffs and the defendants with the assistance of the Taluk Surveyor. (2) The Commissioner can also attempt to find out whether any portion of the property claimed by the plaintiffs as per the document has been taken for the purpose of formation of any road. The Commissioner may also point out the number of trees standing on the southern boundary of the plaint schedule property with age which may be of some relevance for a proper determination of the case. If any other additional particulars are to be noted both the sides can file work memo before the Commissioner for reporting W.P.C 33779 OF 2007 -:3:- the same. The initial expenses have to be met by the defendants now and the ultimate liability will depend upon the result of the suit. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-