IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 OP(C).No. 3324 of 2011(O) -------------------------------------- I.A. NO.2129/2010 IN OS.56/2005 of MUNSIFF COURT, THALASSERY .................... PETITIONERS -------------------- 1. K. CHANDRAMOHAN, S/O.SANKARAN, AGED 53 YEARS, SEAMAN, RESIDING AT SANKARAN, THIRUVANGAD AMSOM DESOM, THALASSERY-670 103, KANNUR DISTRICT. 2. V. SUMITHRA, W/O.CHANDRAMOHAN, RESIDING AT SANKARAN, THIRUVANGAD AMSOM DESOM, THALASSERY-670 103, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): -------------------------- P.K. JALAJA, D/O.LATE SANKARAN, RESIDING AT M.K.C. QUARTERS, GOODS SHED ROAD, THALASSERY-670 101, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3324 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORIGINAL PLAINT IN OS.56/2005 ON THE FILE OF MUNSIFF'S COURT, THALASSERY. EXT.P2 TRUE COPY OF THE COMMISSIONER'S REPORT AND PLAN DATED 14/3/2005. EXT.P3 TRUE COPY OF THE COMMISSIONER'S REVISED REPORT DATED 4/3/2006 WITH PLAN. EXT.P4 TRUE COPY OF THE COMMISSIONER'S REPORT DATED 21/7/2010 WITH PLAN. EXT.P5 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA.2129/2010 IN OS.56/2005 ON THE FILE OF MUNSIFF'S COURT, THALASSERY. EXT.P6 TRUE COPY OF THE COUNTER STATEMENT IN IA.2129/2010 IN OS.56/2005 ON THE FILE OF MUNSIFF'S COURT, THALASSERY. EXT.P7 TRUE COPY OF THE ORDER DATED 13/12/2010 IN IA.2129/2010 IN OS.56/2005 ON THE FILE OF MUNSIFF'S COURT, THALASSERY. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3324 of 2011 -------------------------------------- Dated this the 2nd day of November, 2011. JUDGMENT Petitioners are the defendants in O.S.No.56 of 2005 of the court of learned Munsiff, Thalassery. The suit as originally filed by the respondent was for prohibitory injunction against using any portion of the scheduled property to form a road and committing waste in the said property. Later (as learned counsel for petitioners submitted) in the year, 2011 the plaint was amended to incorporate a prayer for fixation of boundary and to enclose the suit property with barbed wire fencing. Petitioners filed written statement denying the contentions in the plaint. The Advocate Commissioner submitted Ext.P2, report and plan. That report and plan were remitted to the Commissioner on the request of respondent. The Advocate Commissioner submitted Ext.P3, report and plan after remission. Ext.P3, report and plan were again remitted and since the Advocate Commissioner who prepared Exts.P2 and P3, reports and plans was not available, another Advocate was appointed. That Advocate inspected the property with assistance of a Surveyor and submitted Exts.P4, report and plan. Petitioners preferred Ext.P5, objection to the said report and plan and requested further remission of that report and plan. Learned Munsiff by Ext.P7, order dismissed Ext.P5. Ext.P7 order is under challenge. OP(C)No.3324/2011 2 2. It is pointed out by the learned counsel for petitioners that since the Advocate Commissioner who prepared Exts.P2 and P3, reports and plans is not available as she has gone abroad, considerable difficulty is being experienced by petitioners in examining the said Advocate Commissioner and in the circumstances, particularly in the light of Ext.P2, report it was necessary that Ext.P4, report and plan were remitted to the Advocate Commissioner as requested in Ext.P5, objection. Learned counsel has pointed out from paragraph 3 of the report that though respondent submitted a work memo and requested to measure the property of the petitioners and the way shown in the sketch attached to the documents of petitioners, the Advocate Commissioner was not able to measure the same since the document was not placed before the Commissioner at the time of inspection. 3. It is contended by the learned counsel for respondent that the document of title referred to in paragraph 3 of Ext.P4, report has not been produced by the petitioner and hence the Advocate Commissioner could not be found fault for not measuring the property. It is also contended that Ext.P7, order was passed on 13.12.2010, the case was posted for trial in the list on 14.10.2011 and on the proof affidavit of the respondent/plaintiff, she was cross- examined by petitioners on 21.10.2011, 24.10.2011 and 31.10.2011. Now the case stands posted for further evidence of the respondent. OP(C)No.3324/2011 3 4. Pursuant to Ext.P5, objection petitioners did not make any attempt to examine the Advocate Commissioner and Surveyor who submitted Ext.P4, report and plan. Without doing that, merely based on the objection stated by the petitioners the request for remission could not be accepted. 5. No doubt, this suit being one for fixation of boundary, there must be a proper plan of the property. As aforesaid, the Advocate Commissioner and Surveyor have not been examined in support of Ext.P5, objection. It is open to the petitioners in the course of trial to request learned Munsiff permission to examine the Advocate Commissioner and/or the Surveyor as the case may be and point out the deficiency if any, in the report and plan which would stand in the way of fixing the boundary of the disputed property. If any such situation is brought out in the cross-examination of the Advocate Commissioner and/or Surveyor it is open to the learned Munsiff to pass appropriate orders in the matter notwithstanding Ext.P7, order. With the above direction, this Original Petition is disposed of. THOMAS P.JOSEPH, Judge. cks