IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 9652 of 2008(Y) ------------------------- AGAINST THE ORDER DATED IN IA 669/2008 IN OS.451/2003 OF PRINCIPAL MUNSIFF COURT, ALAPPUZHA .................... PETITIONER: ------------ KUTTAPPAN, S/O.GOVINDAN, RESIDING AT AIKKARAPARAMBIL, WARD NO.14 MANNANCHERRY GRAMA PANCHAYAT NORTH ARYAD MURI, KOMALAPURAM VILLAGE. BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENTS: ------------- 1. SIVANI, D/O.KALYANI, RESIDING AT CHOOLAKKADAVIL, WARD NO.14 MANNANCHERRY GRAMA PANCHAYAT, NORTH ARYAD MURI KOMALAPURAM VILLAGE. 2. MADHU, S/O.SIVANI, RESIDING AT CHOOLAKKADAVIL, WARD NO.14 MANNANCHERRY GRAMA PANCHAYAT, NORTH ARYAD MURI KOMALAPURAM VILLAGE. BY ADV. SRI.J.OM PRAKASH FOR R1 AND R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: (...2) APPENDIX Petitioner’s Exhibits:- Exhibit-P1:- True copy of the report of the commissioner dt.12.1.2005 Exhibit-P2:- True copy of the deposition of the commissioner as DW2 dt.20.1.2006 Exhibit-P3:- True copy of the deposition of the re-survey suptd as DW3 dt.23.1.2006 Exhibit-P4:- True copy of the deposition of the 1st respondent as DW1 dt.19.1.2006 Exhibit-P5:- A rough plan showing the properties item Nos.1 to 3 Exhibit-P6:- True copy of the order of the Munsiff dt.21.3.2007 setting aside P1 report Exhibit-P7:- True copy of interim report file by commissioner dt.9.1.08 Exhibit-P8:- True copy of IA 669/08 to review orders dt.11.1.08 & 28.1.08 Exhibit-P9:- True copy of order in IA 669/08 dt. 25.2.08 Exhibit-P10:- True copy of the objection to the Ext.P1 report, filed by 1st respondent dt.28.1.05 //True Copy// P.A. to Judge M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) .No. 9652 of 2008 ------------------------------------------ Dated this the 9th day of June, 2008 JUDGMENT Plaintiff in O.S. 451 of 2003 on the file of Munsiff Court, Alappuzha is the appellant. Defendants are the respondents. Suit was for fixation of a boundary and for injunction. A commission was appointed. The commissioner submitted Ext.C1 report and C1(b) plan. Subsequently, evidence was recorded. Arguments were heard. Suit was posted for judgment. At that stage learned Munsiff passed Ext.P6 order dated 21.3.2007 finding that the extent of the property shown in Ext.C1 plan does not tally with Ext.A1 title deed and respondents have disputed resurvey measurements and in such circumstances, to avoid further litigation, an opportunity is to be granted to the parties for measuring the whole extent of the properties on the basis of old survey measurements. The learned Munsiff found that Ext.C1 report cannot be accepted for proper adjudication of the dispute involved in the suit and posted the case for further steps. Thereafter WPC9652/08 2 learned Munsiff appointed the same commissioner to file a further report. The said commissioner inspected the property and submitted Ext.P7 report stating that for proper identification title deed of the neighbouring property belonging to the plaintiff is necessary and it was not produced. The learned Munsiff, thereafter, passed an order directing the plaintiff to produce the documents. Petitioner then filed IA 669 of 2008 to review the order directing petitioner to produce copies of the documents relating to his property situated on the southern and northern side of the plaint schedule property. Under Ext.P9 order the petition was dismissed. This petition is filed under Article 227 of the Constitution of India to quash Exts.P6 and P9 and to restore the Ext.P1 report (Ext.C report). 2. Learned counsel appearing for petitioner and respondents were heard. The argument of the learned counsel appearing for petitioner is that respondents have filed an application to set aside the report and plan but Court did not set aside the report and plan and instead recorded evidence in the suit including that of the commissioner and the Taluk Surveyor and after closing the evidence on both sides suit was posted for WPC9652/08 3 judgment and at that stage Ext.P6 order was passed. The learned counsel relying on Sections 13 and 14 of Kerala Survey and Boundaries Act, 1961 argued that once resurvey was finalized, as provided under Section 14 it cannot be questioned other than by a suit or appeal as provided under the section and without considering these aspects learned Munsiff passed Ext.P6 order and directed petitioner to produce the title deed which was sought to be corrected by filing a petition to review that order and that petition was also dismissed and in such circumstances Exts.P6 and P9 orders are to be quashed and the learned Munsiff is to be directed to consider the contention raised by the petitioner and decide the suit in accordance with law. Learned counsel appearing for the respondents argued that as per Ext.P6 order petitioner agreed for appointing the same commissioner to inspect property and in such circumstances petitioner is not entitled to seek quashing of Ext.P6 and P9 orders. 3. On hearing the learned counsel on both sides it is clear that Ext.P6 order was passed after the evidence was recorded, arguments were heard and suit was posted for judgment, without hearing the counsel on both sides on the WPC9652/08 4 question whether the properties are to be identified with regard to the old survey plan and also without considering the provisions of Kerala Survey and Boundaries Act, 1961. Even under Ext.P1 order, C1 report was not set aside though it was found that it cannot be relied on. The learned Munsiff passed Ext.P6 order without considering the provisions of Sections 13 and 14 of the Resurvey Boundaries Act. In such circumstances Exts. P6 and P9 orders are quashed. Learned Munsiff is directed to dispose the suit after hearing the plaintiff as well as the defendants, on the question of identity of the plaint schedule property in the light of Ext.C1 report as well as the relevant provisions of Kerala Survey and Boundaries Act, 1961. M. SASIDHARAN NAMBIAR, JUDGE Okb/-