IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 WP(C).NO. 22427 OF 2010(O) -------------------------------------------- OS.2171/2004 OF PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER(S): ---------------------- SARADHA, AGED 58 YEARS, W/O.AIRADAVEETIL RAVI, OLLUR VILLAGE, ANCHERY DESOM, THRISSUR, PIN-680 006. BY ADV. SRI.M.B.PRAJITH RESPONDENT(S): ------------------------ 1. SANKARANARAYANAN, S/O.MELITTA VELAPPAN, `SAYIGEETHA' OLLUR VILLAGE, ANCHERY, THRISSUR, PIN-680 006. 2. PADMAVATHI, D/O.MELITTA VELAPPAN, `SAYIGEETHA' OLLUR VILLAGE, ANCHERY, THRISSUR, PIN-680 006. 3. RAMACHANDRAN, S/O.MELITTA VELAPPAN, `SAYIGEETHA' OLLUR VILLAGE, ANCHERY, THRISSUR, PIN-680 006. ADV. SRI.C.CHANDRASEKHARAN FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.22427 of 2010 ==================================== Dated this the 20th day of August, 2010 J U D G M E N T Petitioner is defendant in O.S.No.2171 of 2004 of the court of learned Principal Munsiff, Thrissur. Respondents filed the suit initially for fixation of boundary. After the Advocate Commissioner submitted report and plan respondents amended the plaint as one for recovery of possession as well. Petitioner filed objection to the report and plan and filed application to remit the same contending that her property has not been measured before Commissioner came to the conclusion that two and odds cents belonging to the respondents is in the possession of petitioner. Learned Munsiff was not impressed by the objection preferred by petitioner and dismissed the application vide Ext.P8, order. That order is under challenge. Learned counsel contends that a reading of Ext.P2, report shows that property of petitioner has not been measured. Learned counsel for respondent pacing reliance on the decision in Sarojini v. Karthiyani Amma (2010 [1] KLT SN 17 Case No. 19) contends that the challenge to Ext.P8, order (under Article 227 of the Constitution) cannot stand. W.P(C) No.22427 of 2010 -: 2 :- It is also contended that property of petitioner has also been measured. 2. What the decision relied on by learned counsel says is that normally the report of Advocate Commissioner or the order passed thereon is not amenable to challenge under 227 of the Constitution but it is stated that when there is failure of justice or gross infirmity it is open to this Court to interfere. Question is whether any such situation has arisen on the facts of this case. In Ext.P2, report Advocate Commissioner states that petitioner claimed right over the property as per settlement deed No.42 of 1997, boundaries and measurement of the said property are not given in the document and the document only says that it is concerning 14.25 cents. Petitioner said that a portion of the said property was sold away but on Commissioner demanding, petitioner was not able to produce revenue extract, possession certificate, revenue receipts etc., to prove her actual entitlement over the property. Hence property of petitioner was measured as per possession. However in the report there is reference to measurement of the property of petitioner. Learned counsel for petitioner contends that it was the responsibility of Advocate Commissioner to collect necessary documents and conduct W.P(C) No.22427 of 2010 -: 3 :- proper measurement particularly when Surveyor was also assisting the Commissioner. 3. I must bear in mind that petitioner is not seeking any relief in the suit. Be it for fixation of boundary or recovery of possession relief is claimed by the respondents. It is for the respondents to show that there is a properly measured plan of the suit property and that any portion of property belonging to them is in the possession of petitioner. Absence of a properly prepared plan would be detrimental to the respondents. That is because in a suit based on title a properly measured plan is essential as title cannot be decided on surmises and conjectures (See Ambujakshy Amma & Another v. Gopi & Another - 1989 [2] KLJ 705). Even for fixation of boundary, respondents have to prove their title to the suit property as per the document of title relied on by them. 4. Though application for remission of report and plan has been rejected by the learned Munsiff as per Ext.P8, order I make it clear that it will be open to the petitioner to urge all her contentions as to the acceptability of report and plan at the time of trial and bring out the infirmities and inadequacies the report and plan have, as contended by the learned counsel. An W.P(C) No.22427 of 2010 -: 4 :- opportunity to show that the report and plan cannot be accepted on the grounds urged by petitioner would be sufficient to allay the apprehension of petitioner that without proper measurement of her property respondents will be allowed to recover possession of the property belonging to her as per the document of title relied on by her. Hence with liberty to the petitioner to raise all her challenges to the report and plan at the time of trial and prove that the report and plan are not acceptable, this Writ Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv