IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 WP(C).No. 8441 of 2009(O) I.A.NO.214/2008 IN OS.588/2005 OF ADDITIONAL MUNSIFF'S, COURT,KOTTAYAM PETITIONER: PLAINTIFF: PETITIONER: --------------- RAJAMOHAN, S/O.KRISHNAN, NADUPARA HOUSE, KUMARAKOM, KOTTAYAM. BY ADV. SRI.PHILIP T.VARGHESE RESPONDENTS: DEFENDANTS: RESPONDENTS: --------------- 1. SUKUMARAN, S/O.AYYAPPAN, NEDUPPURANIKARATHIL, KUMARAKOM, KOTTAYAM. 2. SREE KUMARAMANGALAM DEVASOM, KUMARAKOM, KOTTAYAM, REPRESENTED BY ITS PRESIDENT. 3. BIJU, S/O.SUKUMARAN, NEDUPPURANIKARATHIL, KUMARAKOM, KOTTAYAM. 4. BAIJU, S/O.SUKUMARAN, NEDUPPURANIKARATHIL, KUMARAKOM, KOTTAYAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 8441 OF 2009 O ------------------------------------------------------ Dated this the 17th March, 2009 JUDGMENT The petitioner is the plaintiff in O.S.No.588 of 2005, on the file of the Court of the Additional Munsiff, Kottayam. The suit was filed by him for fixation of boundary, recovery of possession and for injunction. A Commissioner was appointed to measure out the properties. The Commissioner filed a report. Thereafter, on the application of the plaintiff, the same Commissioner was appointed, who inspected the property with the help of the survey officials and filed a report and plan dated 27.11.2007. Again, on the application of the plaintiff as I.A.No.3730 of 2007, the same Commissioner was appointed to note certain additional particulars. The Commissioner filed another report dated 9.1.2008. Thereafter, the petitioner filed I.A.No.214 of 2008 to set aside the Commissioner's report and plan dated 27.11.2007. It was contended that the Commissioner and Surveyor have not property done the work. The Commissioner as well as the Surveyor were examined before Court. The court below considered their evidence and held that there is no ground to set W.P.(C) NO. 8441 OF 2009 :: 2 :: aside the Commissioner's report and plan. The court below also took note of the fact that the report and plan, which are now sought to be set aside, were filed on 27.11.2007 and even thereafter, the same Commissioner was appointed on the application made by the petitioner. The court below stated that at the time when the Commissioner was appointed on the third occasion at the instance of the petitioner, he had no case that the report dated 27.11.2007 and the plan attached thereto require to be set aside. However, when the Commissioner filed the third report, the present application has been filed by the petitioner in 2008 to set aside the second report submitted by the Commissioner in 2007. In spite of the fact that the application could be dismissed on technical grounds,the court below considered the reports and plans and held that there is no ground to set aside the Commissioner's report and plan. I do not think that this Court would be justified in interfering with the well considered order passed by the court below, by exercising jurisdiction under Article 227 of the Constitution of India. The Writ Petition lacks merits and it is accordingly dismissed. The dismissal of the application for setting aside the Commission report is not a bar to the petitioner to establish that the report and W.P.(C) NO. 8441 OF 2009 :: 3 :: plan require to be set aside at a later stage of the litigation as held by a Division Bench of this Court in Kanaran Nair v. Madhavan Nair 1996 (1) KLT 162). The petitioner will have all such rights as held in that decision. (K.T.SANKARAN) Judge ahz/