IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 3933 of 2009(R) ------------------------- OS.100/2007 of MUNSIFF COURT,CHENGANNUR .................... PETITIONER(S): --------------- M.P.GOVINDAN NAMBOOTHIRI,AGED 53 YRS, S/O.PARAMESWARAN NAMBOOTHIRI,MARANGATTU MADATHIL, THIRUVANVANDOOR MURI, THIRUVANVANDOOR VILLAGE, CHENTANNUR TALUK. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S): --------------- 1. S.N.KESAVAN NAMBOOTHIRI, AGED 35 YRS, S/O.NARAYANAN NAMBOOTHIRI,SREENARAYANA VILASAM ILLATHIL, THIRUVANVANDOOR MURI,THIRUVANVANDOOR VILLAGE, CHANGANNNUR TALUK. 2. E.SAVITHRY DEVI, AGED 74 YRS, W/O.NARAYANAN NAMBOOTHIRI, SREENARAYANA VILASAM ILLATHIL, THIRUVANVANDOOR MURI,THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK. 3. GOVINDAN NAMBOOTHIRI, AGED 55 YRS, SREENARAYANA VILASAM ILLAM, THIRUVANVANDOOR MURI, THIRUVANVANDOOR VILLAGE. 4. PRAMESWARAN NAMBOOTHIRI, AGED 51 YRS, SREENARAYANA VILASAM ILLATHIL, THIRUVANVANDOOR MURI, THIRUVANVANDOOR VILLAGE. 5. THIRUVANVANDOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY. ADV. SRI.S.KRISHNAMOORTHY FOR R2 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 3933/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.100 OF 2007 ON THE FILE OF MUNSIFF'S COURT, CHENGANNUR. EXT.P2: COPY OF JUDGMENT IN O.S.NO.384 OF 1952. EXT.P3: COPY OF EXT.G PLAN REFERRED TO IN EXT.P2 JUDGMENT. EXT.P4: COPY OF THE JUDGMENT DATED 17.11.1967 IN S.A.NO.490 OF 1964. EXT.P5: COPY OF THE JUDGMENT DATED 11.8.1999 IN O.S.NO.378 OF 1997 OF THE MUNSIFF'S COURT, CHENGANNUR. EXT.P6: COPY OF THE JUDGMENT DATED 15.11.2005 IN A.S.NO.110 OF 2000. EXT.P7: COPY OF THE WRITTEN STATEMENT FILED BY THE ADDITIONAL 2ND DEFENDANT/PETITIONER IN O.S.NO.100 OF 2007. EXT.P8: COPY OF THE ADDITIONAL WRITTEN STATEMENT TO THE AMENDED PLAINT FILED BY ADDITIONAL SECOND DEFENDANT. EXT.P9: COPY OF THE NOTICE DATED 3.5.2008 ISSUED BY DISTRICT SURVEY SUPERINTENDENT INFORMED THE ADDITIONAL SECOND DEFENDANT. EXT.P10: COPY OF THE LAWYER NOTICE DATED 19.5.2008. EXT.P11: COPY OF THE NOTICE DATED 12.11.2008 ISSUED BY DISTRICT SURVEY SUPERINTENDENT. EXT.P12: COPY OF THE I.A.NO.1924 OF 2008 AND THE SUPPORTING AFFIDAVIT. EXT.P13: COPY OF THE COUNTER AFFIDAVIT FILED BY PETITIONER/ADDITIONAL 2ND DEFENDANT. EXT.P14: COPY OF THE ORDER DATED 9.1.2009. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.3933 of 2009 --------------------------------------------- Dated this the 5th day of March, 2009 JUDGMENT The additional second defendant in O.S.No.100 of 2007 on the file of the court of the Muniff of Chengannur challenges Ext.P14 order dated 9th January 2009 in I.A.No.1924 of 2008 by which the court below appointed a Commissioner to inspect the plaint schedule property. The suit was filed by the respondent Nos.1 to 4 for fixation of boundary. The fifth respondent is the first defendant in the suit. The petitioner was subsequently impleaded as additional second defendant. 2. The plaintiffs filed I.A.No.1924 of 2008 to appoint a Commissioner. The application was opposed by the second defendant. The request of the plaintiffs was to measure the property in accordance with the resurvey plan and to fix the boundary. The second defendant stated that the resurvey plan was not properly prepared and that objections were raised against the same. The proceedings are stated to be pending for correcting the resurvey plan. It is contended that if the WPC No.3933/2009 2 Commissioner inspects the property on the basis of the resurvey plan, it would be highly prejudicial to the interests of the second defendant. The court below held that the pendency of the proceedings against resurvey plan is not a ground for not appointing a Commissioner. The court below thought that it is necessary to measure the properties and to fix the boundary. It was also noticed that if the resurvey plan is corrected, the parties would be entitled to work out their remedies accordingly. 3. The learned counsel for the petitioners submitted that the issues in the present suit are barred by resjudicata in view of the decision in O.S.No.384 of 1952 and O.S.No.182 of 1955, which ended up in Second Appeal Nos.490 of 1964 and 500 of 1964. It is stated that this contention has been raised in the written statement. However, the second defendant has not filed any application to try the issue of resjudicata as a preliminary issue. 4. As things stand, inspection of the property by a Commissioner is necessary. If the second defendant is of the view that the properties are to be measured with reference to the old survey as well, which was relied on in the earlier WPC No.3933/2009 3 litigation which culminated in S.A.No.490 of 1964 and 500 of 1964, he would be free to file a work memo before the Commissioner to measure the property accordingly. Necessarily, the second defendant has to produce the relevant records before the Commissioner for such inspection. Both parties would be entitled to file work memo before the Commissioner. The Commissioner shall consider all the relevant facts and materials and submit a comprehensive plan and report containing all relevant details for a complete and effectual disposal of the case. If the resurvey plan is corrected, any of the parties would be entitled to produce the same before the Commissioner and the Commissioner shall take note of the same as well. The Writ Petition is disposed of as above. K.T.SANKARAN, JUDGE csl