IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 WP(C).No. 4228 of 2009() --------------------------------- AGAINST ORDER DATED 27.6.2008 IN I.A.NO.3240/2007 IN OS.NO.61/2001 IN THE COURT OF PRINCIPAL SUBORDINATE JUDGE, IRINJALAKUDA .................... PETITIONER(S): DEFENDANT -------------------------------------- JOSE, S/O.KUNNATHUR THOMAS PALLIPURAM, KODUNGALLUR. BY ADV. SRI.K.G.BALASUBRAMANIAN SMT.AMBILY (PREMKUMAR) RESPONDENT(S): PLAINTIFF ----------------------------------------- PAILAPPAN, S/O.KURISINGAL KUNJUVAREED PALLIPURAM, KODUNGALLUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.4228 of 2009 --------------------------------------------- Dated this the 9th day of February, 2009 JUDGMENT The petitioner is the defendant in O.S.No.61/01 on the file of the Court of the Subordinate Judge of Irinjalakuda. The suit was filed for recovery of possession of the plaint B schedule property which according to the plaintiff was trespassed upon by the defendant. The plaintiff claims title to the A schedule property and according to him, B schedule property is a portion of A schedule property. 2. A Commissioner was appointed, who filed a report and plan. The Commissioner relied on a sketch produced by the Village Officer. It is admitted by both parties that it is not an officially approved sketch. However, it has been brought out in evidence that no other official documents are available. The petitioner defendant filed I.A.No.3240/07 to set aside the Commissioner's report and plan. The plaintiff filed I.A.No.3835/07 to remit the Commissioner's report with a direction to measure the property of the defendant as well, in order to identify the disputed property. The court below WPC No. 4228/2009 2 dismissed both these applications by a common order dated 27th June 2008. The plaintiff challenged the order, by which his application was dismissed, in W.P.(C) No.23508/08 which was disposed of as per judgment dated 18th September 2008. This Court held that it is for the plaintiff to establish his title over the plaint schedule property. It was also observed that if the defendant claims a rival title to the disputed property, the court will have to adjudicate on the prima facie title of the rival claimants. This Court was inclined to accept the contention of the plaintiff that the Commissioner's report should be remitted to him. 3. The petitioner herein submits that the court below was not justified in dismissing the application filed by him for setting aside the Commissioner's report and sketch. It is also submitted that certain observations have been made by the court below which would affect the defendant during the trial of the case. 4. The court below found that the Commissioner's report is not the only piece of evidence to be looked into. The court below also referred to the circumstances under which the plaintiff as well as the defendant were assigned Purampoke WPC No. 4228/2009 3 lands. In that process, the court below also held that the available documents and the available evidence would indicate that there are no other official documents to prove the contentions of either party. These observations were made, to my mind, in the process of disposal of the application and while considering the question whether the Commissioner's report and plan should be remitted and/or to be set aside. The observations made in the interlocutory orders normally would not be relied on by the court below at the time of final disposal of the case. Therefore, the petitioner need not consider himself prejudiced by such observations. It is made clear that the observations made by the court below were made for the purpose of disposal of the applications. Needless to say that the court below shall dispose of the suit in accordance with law, after taking into account all the materials and evidence in the case. I do not find any ground to interfere with the order impugned. The Writ Petition is accordingly dismissed with the above observations. K.T.SANKARAN, JUDGE csl