IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 28687 of 2008(M) -------------------------- PETITIONER(S): ------------------------ 1. M. SAJITH, S/O. P.H. MUHAMMED SALIM, PUTHUPPARAMBIL, ROSE DALE HOUSE, KUMILY KARA, KUMILY VILLAGE, IDUKKI DISTRICT. 2. P.H.MUHAMMED SALIM, S/O. HASSAN RAWTHER, PUTHUPPARAMBIL, ROSE DALE HOUSE, KUMILY KARA, KUMILY VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.P.K.MUHAMMED RESPONDENT(S): -------------------------- 1. KHADEEJA BEEVI, W/O. P.H.ABDUL RAHIM, PUTHUPPARAMBIL ROSE DALE HOUSE, KUMILY KARA, KUMILY VILLAGE, IDUKKI DISTRICT. 2. SUNIL A. RAHIM, S/O. P.H. ABUDL RAHIM, PUTHUPPARAMBIL, ROSE DALE HOUSE, KUMILY KARA, KUMILY VILLAGE, IDUKKI DISTRICT. 3. SOUMYA A. RAHIM, D/O. P.H.ABDUL RAHIM, PUTHUPPARAMBIL, ROSE DALE HOUSE, KUMILY KARA, KUMILY VILLAGE, IDUKKI DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.28687 of 2008 = = = = = = = = = = = = = = Dated this the 7 th day of October, 2008 JUDGMENT The defendants in O.S.No.93 of 2000 on the file of the Sub Court, Kattappana are the petitioners in this writ petition filed under Articles 226 and 227 of the Constitution of India. The said suit was filed by one Abdul Rahim for rectification of Ext.A2 sale deed dated 14.3.91. Pending the suit the plaintiff died and his wife and children were impleaded as additional plaintiffs. According to the plaintiff the 1st plaintiff obtained 1.50 acres of land comprised in R.S.No.22/2 of Kumali village under Ext.A3 Certificate of Purchase issued by the Land Tribunal, Peerumedu and from out of the said 1.50 acres of land the original plaintiff sold 1 acre of land to defendants 1 and 2 as per Ext.A2 sale deed dated 14.3.91. Subsequently the plaintiffs filed the present suit in the year 2000 alleging that the eastern boundary of the property sold under Ext.A2 is a mistake and it should be corrected. 2. The defendants on the other hand contend that W.P.(c).No.28687 of 2008 2 eventhough the property which was sold under Ext.A2 sale deed is only 1 acre, the original plaintiff had obtained title and possession only over 1 acre of land under Ext.A3 certificate of purchase and the present claim of the plaintiffs that the eastern boundary is incorrect is not sustainable. 3. The trial court had deputed an Advocate Commissioner who filed Exts.C2 and C2(a) report and plan. The plaintiffs filed I.A.No 498 of 2005 for setting aside the said report and plan. The said application was dismissed by the trial court on 26.6.07. Aggrieved by the said order the plaintiffs filed W.P.(c) No.27954 of 2007 before this Court. As per Ext.P3 judgment dated 30.1.08, this Court disposed of the said writ petition directing the Commissioner to adopt two different methods for identification of the property. Accordingly, the matter stood remanded to the trial court. While so, the petitioners who are defendants 1 and 2 filed I.A.No.583 of 2008 before the court below to direct the Commissioner to carry out the work in accordance with Ext.P4 work memo submitted by the defendants. As per the impugned order (Ext.P5) dated 22.8.08, the court below dismissed the said application holding, inter alia, W.P.(c).No.28687 of 2008 3 that the prayer of the defendants cannot be granted as the matter was concluded by Ext.P3 judgment which contains specific directions as to how the Commissioner is to proceed with the work. 4. The sole attempt of the court is to ascertain the actual extent of property obtained by the original plaintiff under Ext.A3 Certificate of Purchase. If the actual extent contained under Ext.A3 Certificate of Purchase is 1.50 acres, then there is some force in the contention of the plaintiffs. If on the contrary, the actual extent conveyed under Ext.A3 Certificate of Purchase is only 1 acre, then the case of the plaintiffs may not be sustainable. It was to ascertain this aspect of the dispute that this Court directed the Commissioner to adopt the two methods indicated in the judgment. There is nothing wrong in either the defendants or the plaintiffs submitting work memos before court for the consideration of the Commissioner while undertaking the work. What is relevant can be accepted by the Commissioner and what is irrelevant can be ignored by the Commissioner. Finally the court will have the opportunity of considering the entire aspect and arrive at a just conclusion in the matter. W.P.(c).No.28687 of 2008 4 Hence notwithstanding Ext.P5 order dated 22.8.08, it shall be open to the defendants as well as the plaintiffs to submit work memos before the Commissioner after filing the same before the court below. The court below shall communicate a copy of this order to the counsel appearing for the plaintiffs also so as to give them also an opportunity to submit the work memo for the consideration of the Commissioner so that the identity of the property conveyed under Ext.A3 Certificate of Purchase is correctly fixed. This writ petition is disposed of as above. Dated this the 7th day of October, 2008. V. RAMKUMAR, JUDGE sj W.P.(c).No.28687 of 2008 5 V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.28687 of 2008 = = = = = = = = = = = = = = Dated this the 7 th day of October, 2008 Order Incidentally this court has come across Ext.P1 which purports to the judgment in O.S.No.93 of 2003 containing the signature of the Sub Judge. Going by Ext.P1 the said suit was posted on 10.3.04. The Registry shall conduct an enquiry to ascertain as to how Ext.P1 draft judgment came to be produced by the defendants before this Court. It shall also be enquired into as to whether Ext.P1 draft judgment was finalised and a fair judgment was actually pronounced in court. If the Sessions Judge had prepared the draft judgment it should be found out as to how the copy of the draft judgment leaked out from the custody of the Stenographer and made available to the parties to the suit. V. RAMKUMAR, JUDGE sj