IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).No. 23805 of 2010(O) -------------------------- OS.185/1999 of MUNI-MAGI.COURT,MANNARKAD .................... PETITIONER: --------------- SANKARANARAYANAN, S/O.LATE ARUMUGHAN @ KUNHUNNI KUNNAMKULAM VEETTIL,THENKARA AMSOM,DESOM MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.K.BABU RESPONDENT: --------------- MAMMUTTY, S/O.LATE MOIDU PERUMBULLI VEETTIL THENKARA AMSOM, DESOM, MANNARKKAD TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.23805 of 2010 --------------------------------------- Dated this 11th day of August, 2010 JUDGMENT Challenge in this writ petition is at the instance of plaintiff as to correctness of report and plan submitted by the Advocate Commissioner after the earlier report was remitted to him. Petitioner/plaintiff sued respondent for a decree for prohibitory injunction scheduling 2.88 acres as the property over which petitioner claimed title and possession. Advocate Commissioner submitted Ext.P2, report to which petitioner preferred Ext.P3, objection stating that Commissioner has not considered the relevant documents of title of petitioner and that suit property has not properly been identified. That report was remitted and property was measured with assistance of the Taluk Surveyor. Commissioner submitted his report and plan. Then came I.A.No.485 of 2009 at the instance of petitioner to set aside the said report and plan. There, objection raised is that Advocate Commissioner has not taken into consideration documents relating to the acquisition of land and instead, has wrongly stated land acquired was from the suit property. Learned Munsiff refused to remit the report and plan a second time and dismissed the application. It is contended by W.P.C.No.23805 of 2010 : 2 : learned counsel that report and plan prepared by the Advocate Commissioner are not correct and requires remission. Petitioner has produced certified photocopy of notice of award dated 21-01-1969 and plan Advocate Commissioner has submitted after the second inspection. 2. As per notice of award it would appear that 0.224 hectors in survey 166/2B was acquired from one Cheriya Yezhuvath Kunhukutty Amma and petitioner. Similarly another 0.610 hectors was acquired from eight persons including petitioner. In the plan prepared by Advocate Commissioner, plot No.5 is the property stated to be in the possession of petitioner extending to 1.92 acres and on its immediate west is plot No.7, panchayath road having an extent of 25.75 cents. On the further west is plot No.3 which is 62.75 cents in extent and which petitioner claims is part of the suit property. Learned counsel has stated that even if the panchayath road is excluded from consideration petitioner is entitled to have more than the 1.92 acres as reported by the Advocate Commissioner and shown as plot No.5 in the plaint. 3. Advocate Commissioner stated that there was no dispute regarding boundaries of suit property except the western boundary where it is the panchayath road. Advocate Commissioner was of the view that after assignment deed No.1855 of 1960 relied on by petitioner and before purchase certificate No.3670 of 1976 W.P.C.No.23805 of 2010 : 3 : was issued panchayath road came into existence and it is without taking into account that, the purchase certificate was issued with respect to 2.88 acres. It is on the above aspect that petitioner has challenged and wanted report and plan remitted to the Commissioner again. Learned Munsiff found that so far as the position of the case is concerned further remission is not warranted. 4. This court in Sarojini Vs. Karthiyani Amma (2010 (1) SN 17 (C.No.19)) has stated that report of the Advocate Commissioner is only a piece of evidence, merit and value of which has to be appreciated with reference to other materials to be tendered in the case. It is also stated that supervisory jurisdiction under Article 227 of the Constitution is not to be exercised except when the report suffered from an infirmity which if not corrected, will result in grave injustice. Here, the suit is for injunction based on possession. Complicated questions of title are not required to be gone into such a suit. Court has to decide issue regarding possession based on the evidence on record. Of course, report of the Advocate Commissioner also will be a piece of evidence but, not the only piece of evidence. It is open to the petitioner to adduce evidence regarding possession of the suit property as claimed by him. I make it clear that petitioner can make use of the notice of award dated 21-11-1969 in support of his contention that report of W.P.C.No.23805 of 2010 : 4 : the Advocate Commissioner is not correct. If such evidence is produced, learned Munsiff has to consider, bearing in mind the scope of a suit for injunction whether such evidence is relevant for consideration. With the above observation this writ petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-