IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22073 of 2008(C)
1. MOHANAN, S/O.RAGHAVAN, VALIYAPARAMBIL
... Petitioner
2. SUBHASH, S/O.RAGHAVAN, DO. DO.
3. PONNAPPAN, S/O.RAGHAVAN, DO. DO.
4. RADHAPPAN, S/O.RAGHAVAN, DO. DO.
5. BOSE, S/O.RAGHAVAN, DO. DO.
6. IJAPPAN, S/O.RAGHAVAN, DO. DO.
7. SUDHARMA, D/O.RAGHAVAN, DO. DO.
8. ROYMON, S/O.RAGHAVAN, DO. DO.
Vs
2. MADHAVI @ MANKA, W/O.KESAVAN,
... Respondent
3. SIVARAJAN, S/O.KESAVAN, MANOJ BHAVAN,
4. PEETHAMBARAN, S/O.KESAVAN, SEEMA BHAVAN,
5. PONNAPPAN, S/O.KESAVAN, MAPPILA
1. RAMDAS, S/O.KESAVAN, SALEEM SADANATHIL
For Petitioner :SRI.GEORGE JOSEPH (ITTANKULANGARA)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
-------------------------------
W.P.(C) No.22073 of 2008
-------------------------------
Dated this the 22nd July, 2008.
J U D G M E N T
Petitioners are the plaintiffs in O.S.No.317 of 1994, on
the file of Munsiff Court, Vaikom. Petitioners filed I.A.No.919 of 1995,
an application to appoint a new Commissioner and Surveyor. That
petition was dismissed. It was challenged before this Court in W.P.(C)
No.12465 of 2008. Under Ext.P6 judgment, this Court set aside the
order dismissing the application and directed Munsiff to obtain a plan
and report, in accordance with the directions contained in the
judgment of the Appellate Court. Trial court was also directed to
appoint the same Commissioner or any other Commissioner assisted
by a surveyor to obtain a correct plan demarcating the plaint schedule
property. Petitioners were permitted to file work memo. Subsequent
to Ext.P6 judgment, learned Munsiff allowed I.A.No.922 of 2008 under
Ext.P9 order. But learned Munsiff refused the prayer to appoint a new
Commissioner and instead appointed the same Commissioner and also
appointed a private surveyor. This petition is filed under Article 227 of
the Constitution of India challenging Ext.P9 order.
W.P.(C) No.22073/2008
2
2. The argument of the learned counsel is that learned
Munsiff should have appointed a new Commissioner, as the report
submitted by the original Commissioner was set aside. Ext.P6
judgment directs trial court to appoint either the same Commissioner
or another Commissioner. So long as there is no allegation of personal
bias against the earlier Commissioner, there is no necessity to change
the Commissioner, as canvassed by the petitioner.
3. The main argument of the learned counsel is that
instead of Taluk Surveyor, a private surveyor was appointed. Ext. P7
application shows that prayer was not to appoint a Taluk surveyor.
The learned counsel submitted that in the affidavit filed in support of
Ext.P7 petition, it is stated that Taluk Surveyor is to be appointed.
Evidently, that was not pressed, when the petition was heard by the
Munsiff. Even before this Court, petitioner did not contend in the
earlier writ petition that Taluk Surveyor is to be appointed. Whatever
it be, if the case of the petitioners is that service of private surveyor
may not serve the purpose, petitioners are at liberty to file an
application before learned Munsiff to change the Surveyor to Taluk
Surveyor. If such an application is filed by the petitioners, learned
W.P.(C) No.22073/2008
3
Munsiff to pass appropriate orders, in accordance with law, after
hearing the parties.
Writ petition is disposed as above.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.