IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 7972 of 2009(O) ------------------------- AGAINST THE ORDER IN IA 4148/08 IN OS.42/2007 of MUNSIFF'S COURT, HOSDRUG .................... PETITIONER(S): ------------------------ 1. PUTHIYA PARAMBATH ARYA LAKSHMI, D/O.PULIKKODAN KELU, "GOKULAM”, KANHANGAD SOUTH, KANHANGAD VILLAGE, HOSDRUG TALUK, KASARAGOD DISTRICT. 2. PUTHIYA PARAMBATH KRISHNAMANI, D/O.PULIKKODAN KELU, "GOKULAM", KANHANGAD SOUTH, KANHANGAD VILLAGE, HOSDRUG TALUK KASARAGOD DISTRICT. BY ADV. MR.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): --------------------------- 1. V.NARAYANAN,S/O.V.RAMAN,PIGMI COLLECTOR, KANHANGAD SOUTH, KANHANGAD VILLAGE, P.O. KANHANGAD, HOSDRUG TALUK, KASARAGOD DISTRICT. 2. V.GOPALAN, S/IO.V.RAMAN,DOCUMENT WRITER, KANHANGAD SOUTH, KANHANGAD VILLAGE, P.O. KANHANGAD, HOSDRUG TALUK,KASARAGOD DISTRICT. 3.* CHIRAMMAL KUNHIRAMAN,KANHANGAD SOUTH, KANHANGAD VILLAGE, P.O. KANNANGAD, HOSDURG TALUK, KASARRAGOD DISTRICT. *THE NAME OF R3 “CHIRAMMAL KUNHIRAMAN” IS CORRECTED AS “CHIRAMMAL KUNHIKANNAN” AS PER ORDER DTD. 5/06/09 IN IA 6430/09. R1 & R2 BY ADV. MR.JAWAHAR JOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7972/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT IN O.S.42/2007 MUNSIFF'S COURT, HOSDRUG. P2: COPY OF WRITTEN STATEMENT FILED BY DEFENDANTS 1 AND 2 IN O.S.42/2007 MUNSIFF'S COURT, HOSDRUG. P3: COPY OF WRITTEN STATEMENT FILED BY THE 3RD DEFENDANT IN O.S.42/07 MUNSIFF'S COURT, HOSDRUG. P4: COPY OF WRITTEN STATEMENT FILED BY THE PLAINTIFFS TO THE COUNTER CALIM IN O.S.42/2007. P5: COPY OF REPORT AND PLAN DTD. 22/12/2008 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.42/2007 MUNSIFF'S COURT, HOSDRUG. P6: COPY OF AFFIDAVIT AND PETITION I.A.4148/2008 INO.S.42/2007 FILED BY THE PETITIONERS. P7: COPY OF ORDER DTD. 27/01/2009 INI.A.4148/2008 IN O.S.42/2007 MUNSIFF'S COURT, HOSDRUG. RESPONDENT'S EXHIBITS: N I L TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.7972 of 2009 - O --------------------------------- Dated this the 17th day of September, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To set aside/quash Exhibit P7. ii) To remit Exhibit P5 report and plan to the Advocate Commissioner to rectify the mistakes pointed out in Exhibit P6.” 2. Petitioners are the plaintiffs in O.S.No.42 of 2007 on the file of the Munsiff Court, Hosdurg. Suit is one for fixation of boundary and perpetual prohibitory injunction and the respondents are the defendants. On the application moved by the plaintiffs, an advocate commissioner conducted local inspection, measured out the property and filed a report and plan with the assistance of a surveyor. To the report and plan petitioners/plaintiffs raised serious objections. The learned Munsiff dafter considering the objection passed Ext.P7 order holding that the report and plan are not liable to be remitted at this stage. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested W.P.(C).No.7292 of 2009 - O 2 with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Learned counsel for the petitioner inviting my attention to the various observations made by the learned Munsiff in Ext.P7 order challenged in the writ petition, submitted that very many objections raised by the plaintiffs have been found to be having merit, but, the court below declined to remit the report holding clarification if any to the report can be made after examining the commissioner in trial. Since some of the deficiencies noted in the report and plan are vital, according to the counsel, before the case is listed for trial collection of a report and plan afresh from the advocate commissioner is essential for a fair and proper adjudication of the suit. However, the learned counsel for the respondent submitted the right of the petitioner to canvass whatever challenges involved to the report and plan are reserved under Ext.P7 order and so much so, it cannot be stated that he has suffered any injury by Ext.P7 order. 5. Having heard the counsel on both sides at length with reference to Ext.P7 order challenged in the writ petition, I find it W.P.(C).No.7292 of 2009 - O 3 is not proper and appropriate for this Court to evaluate the merit of the report and plan in exercise of its visitorial jurisdiction. More so, when it is yet to be considered by the trial court. Needless to point out that the report and plan collected in a suit or proceedings is only a piece of evidence and its merit has to be evaluated with reference to other materials tendered in the case. So much so, I find that whatever be the objections canvassed by the petitioners/plaintiffs to the report and plan such objections have to be substantiated by examining the commissioner and also the surveyor at the trial. I direct the court below to provide an opportunity to the petitioner to examine the commissioner, if steps are taken, at the trial and, then decide the merit of the report and plan. Subject to the observations made above, writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-