IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 21178 of 2008(U) -------------------------- OS.134/2007 of MUNSIFF COURT,ALUVA .................... PETITIONER: ------------ JOSEPH, S/O.THOMMAN, PEREPPADAN HOUSE KARUKUTTY KARA KARUKUTTY VILLAGE, ALUVA BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: ------------- 1. JOHNY, S/O.THOMMAN, PEREPPADAN HOUSE, KA RUKUTTY KARA KARUKUTTY VILLAGE, ALUVA TALUK. 2. SOSAMMA, W/O.JOHNY, PAREPPADAN HOUSE, KARUKUTTY KARA, KARUKUTTY VILLAGE, ALUVA TALUK 3. BABU, S/O.JOHNY, PAREPPADAN HOUSE,DO.DO. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 21178 OF 2008 ............................................ DATED THIS THE 22nd DAY OF JULY, 2008 JUDGMENT Petitioner is the plaintiff in O.S.134 of 2007 on the file of Munsiff Court, Aluva. Respondents are the defendants. This petition is filed under Article 227 of Constitution of India challenging Ext.P8 order passed by learned Munsiff in I.A.1149 of 2008, an application filed by respondents to set aside the report and plan submitted by the Commissioner on 8.4.2008. Under Ext.P8 order, learned Munsiff allowed the application and set aside the report and plan. 2. Learned counsel appearing for petitioner and respondents were heard. The argument of learned counsel appearing for petitioner is that even if identification made by the Commissioner is not correct, the proper remedy should have been to remit the report to Commissioner and not to set aside the report and thereby erase the report from the records. Learned counsel appearing for respondents argued that no purpose will be served by remitting the report to Commissioner as Commissioner had submitted three reports which show that no pathway as alleged is in existence and being a suit for WP(C) 21178/2008 2 injunction, there is no necessity for a Survey Commission and in such circumstances, there is no reason to interfere with Ext.P8 order. 3. On hearing both sides, I find force in the submission of learned counsel appearing for petitioner that when the court has found that report and plan submitted by Commissioner is defective for the failure to identify the property with reference to patta land and puramboke land, learned Munsiff should not have set aside the report and instead, should have remitted the report back to the Commissioner. In such circumstances, Ext.P8 order is quashed. Learned Munsiff is directed to remit the report back to Commissioner with a specific direction to identify the property, considering the objections raised by petitioner in I.A.1149 of 2008 and file a report. Expense of the Commission shall be borne by petitioner. M.SASIDHARAN NAMBIAR, JUDGE lgk/-