IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 WP(C).No. 32794 of 2007(D) -------------------------- OS.50/2003 of MUNSIFF COURT, PAYYOLI .................... PETITIONER: ------------ MEKKUNNANKANDI VELLIYOTH ABDULLA, S/O SOOPY HAJI, AGED 66 YEARS, MEKKUNNELKANDI, VELLIYODE, VILAYATTU AMSOM,DESOM, KOYILANDY TALUK. BY ADV. SRI.MILLU DANDAPANI RESPONDENT: ------------- VELLLIYOTH IBRAYI, S/O SOOPY HAJI, AGED 68 YEARS, MEKKUNNELKANDI, VELLIYODE, NOW RESIDING AT PALAMADATHIL, IRINGATHU AMSOM, DESOM, KOYILANDY TALUK. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 32794/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE WORK MEMO DT. 11.3.04 SUBMITTED BY PETITIONER BEFORE THE ADVOCATE COMMISSIONER IN OS 50/03 BEFORE THE MUNSIFF COURT, PAYYOLI EXT.P2. COPY OF THE JUDGMENT DT. 29.5.07 OF THIS HONOURABLE COURT IN WPC NO.18448/04 EXT.P3. COPY OF THE COMMISSION REPORT AND PLAN DT. 19.9.07 SUBMITTED BY ADVOCATE COMMISSIONER EXT.P4. COPY OF THE AFFIDAVIT AND PETITION DT. 28.9.07 TO REMIT COMMISSION REPORT SUBMITTED BY PETITIONER EXT.P5. COPY OF THE ORDER DT. 18.10.07 OF MUNSIFF COURT PAYYOLI, IN IA 476/07 IN OS 50/03 RESPONDENT'S EXHIBITS: EXT.R1. COPY OF THE PLAINT IN OS 50/03 ON THE FILE OF THE MUNSIFF COURT, PAYYOLI DT. 16.10.03 EXT.R2. COPY OF THE COMMISSIONER'S REPORT DT. 3.2.04 EXT.R3. COPY OF THE COMMISSIONER'S REPORT DT. 6.4.04 EXT.R4. COPY OF THE REPORT OF THE TALUK SURVEYOR DT. 11.3.04 EXT.R5. COPY OF THE REPORT DT. 19.9.07 AND SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 32794 OF 2007 --------------------- Dated this the 18th day of March, 2008 JUDGMENT This writ petition is preferred against the order of the Munsiff-Magistrate in IA 476/07 in OS 50/03. This is an application filed for remitting commissioner's plan and report, that has been dismissed by the court below. 2. The main grievance of the writ petitioner, who is the defendant in the suit, is that item No.3 of D schedule property of the 1986 partition deed has not been identified with reference to the description and boundaries and it is absolutely necessary for a proper disposal of the case. The court below did not find in favour of the writ petitioner and declined that request. A reference to the affidavit filed by the defendant dated 28.9.07 para 2(e) itself would reveal that “ ”. 3. So plot A,B shown in the commissioner's plan is item D schedule property. Therefore there cannot be a dispute with respect to the identification of the property. But the question may loom large WPC NO 32794/07 2 whether the plaintiff is entitled to that property and whether there is any mistake committed by the commissioner in locating the property etc. These are all matters of evidence which has to be decided by the court when the trial is over. There is no point in remitting commissioner's plan and report for the said purpose. They are the observations made by the court below while disposing of the application. I make it clear that learned Munsiff has to approach the matter untrammelled by the observations made therein and also to permit the writ petitioner herein to adduce evidence with respect to the objections raised by him to the commissioner's plan and report. Needless to say, the other side is also entitled to adduce evidence. The writ petition is disposed of with these observations. M.N.KRISHNAN, JUDGE vps WPC NO 32794/07 3 WPC NO 32794/07 4 WPC NO 32794/07 5