IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 22996 of 2008(K) -------------------------- OS.313/2005 of MUNSIFF COURT, HOSDRUG .................... PETITIONER: ------------ 1. ADUKKADUKKAM VEETTIL THULASI D/O. SUBRAMANYAN ADIYODI CHINMAYA COLONY, P.O.VIDYANAGAR 2. GANGADHARAN,AGED ABOUT 37 YEARS S/O.LAE NARAYANAN NAIR RESIDING AT ADUKKAM, KALLAR VILLAGE, HOSDURG TALUK, RAJAPURAM P.O. BY ADV. SRI.T.K.VIPINDAS RESPONDENTS: ------------- 1. CHERUVAKKATH MADATHIL THANKAMANI D/O.CHERUVAKKATH MADATHIL DEVAKI AMMA RESIDING AT "SHANKARABHAVANAM" KAITHAPRAM, PANAPUZHA VILLAGE, KANNUR TALUK, KANNUR DISTRICT P.O.MATHAMANGALAM. 2. P.C.SUBRAMANIYAN ADIYODI S/O. K.BHASKARAN NAMBIAR, CHINMAYA COLONY VIDYANAGAR. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.22996 of 2008 ------------------------------- Dated this the 30th July, 2008. J U D G M E N T Petitioners are the defendants and respondents the plaintiffs in O.S.No.313 of 2005, on the file of Munsiff Court, Hosdurg. This petition is filed under Article 227 of the Constitution of India challenging Ext.P7 order passed by learned Munsiff in I.A.No.992 of 2008, dismissing an application filed by the petitioners for remitting the report. 2. The learned counsel appearing for petitioners argued that suit is one for injunction filed by the respondents claiming that they are in possession of the plaint schedule properties demarcated by the Commissioner in Ext.P3 plan as plot Nos.19/1A, 19/1B and 19/1C, and petitioners claim that they in possession of plot Nos.19/1B, 19/1C, 19/1E and 19/1F. It was pointed out that when the Commissioner originally submitted the report, Ext.P8 objection was filed stating that Commissioner did not note the relevant facts including the level difference between plot 19/1A and plot 19/1B, and the report was remitted to the Commissioner at the instance of the petitioners, as well W.P.(C) No.22996/2008 2 as respondents and Commissioner had issued notice to inspect the property, but submitted a report without inspection. It was pointed out that in Ext.P5, the further report, Commissioner did not verify the objections stated in Ext.P8 and this aspect was not taken note of by the learned Munsiff in Ext.P7 order. What is stated in Ext.P5 report with regard to the level difference is only that the road on the south of plot 19/1B, 1C and 1D is in a lower level by one meter than the said plots. It was argued that the question whether plots 19/1B is on a lower level than Plot 19/1A was not noted at all. It is therefore argued that Ext.P7 order is to be quashed. 3. In view of the order to be passed in this petition, I do not find it necessary to issue notice to respondents. 4. In Ext.P7 order, learned Munsiff has not considered the objections raised by the petitioners seeking a remission of the report. It was specifically contended by the petitioners that a further inspection by the Commissioner is necessary and the relevant facts are omitted to be noted. From the fact that the original report was remitted back to the Commissioner, it is clear that learned Munsiff was satisfied with the necessity to have those aspects cleared. In such W.P.(C) No.22996/2008 3 circumstances, there is force in the submission of the learned counsel that learned Munsiff did not consider the objections in the proper perspective while passing Ext.P7 order. 5. In such circumstances, Ext.P7 order is quashed. Learned Munsiff is directed to re-hear I.A.No.992/2008 in the light of Exts.P8 and P6 objections filed by the petitioners and pass appropriate orders, in accordance with law. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.