IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 7096 of 2004(T)
1. SHEIKH MUSTHAFA, ATHAYAMPATHY,
... Petitioner
Vs
1. SIVASWAMY, KALLIYANKARAYAR,
... Respondent
2. RUGMINI W/O. KALLIYANGARAYARA,
3. KALLIYAMMAL W/O. ARUMUGHA KOUNDER,
4. PAZHANIMALA S/O. KUTTU,
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.SAJAN VARGHEESE K.
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :11/07/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) Nos. 7096 and 19435 OF 2004
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Dated this the 11th day of July, 2007
JUDGMENT
Sri.K. SajanVarghese, learned counsel for the respondent submits
that the suit itself presently stands dismissed and to his information, till
this moment, no application for restoration of suit has been filed. If what
the learned counsel submits is correct, then both the writ petition will
stand dismissed as infructuous.
Subject to the varification of the above aspect of the matter by the
court below, I propose to consider the correctness of Ext.P4 in WP(C)
7096 of 2004 and also that of Exts.P3 and P4 in WP(C) 19435 of 2004
which are in fact orders passed by way of consequence of Ext.P4 in WP
(C) 7096 of 2004. Ext.P4 is an order by which the court below has
dismissed an application for appointment of a fresh commission for
identification of the petitioner’s property on the basis of title deeds and
village records and to prepare a survey plan. On considering that
application, the court appointed a commissioner who filed an interim
report which was to the effect that the disputed property i.e., plaint item
No.5 cannot be measured on the basis of the title document and village
records. To that report no objections were filed by the defendants.
Plaintiff filed objections. Under the impugned order, the learned Munsiff
WPC Nos. 7096 & 19435
0f 2004
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has found inter alia that the petitioner has not taken any steps for
substantiating his objections to the interim report by cross examining the
commissioner or the surveyor so that the court could be convinced that
the property can still be properly identified and measured on the basis of
the available records. It is merely on that reason that the court became
obliged to accept the interim report and closed the commission
application itself without granting the request of the petitioner.
2. Having regard to the nature of suit and the nature of the
contentions raised therein, I am of the view that the petitioner who is the
plaintiff is to be afforded an opportunity for substantiating the objections
which he had filed to the interim report of the Commissioner by cross
examining the Commissioner and by examining the Surveyor. Even as I
do not find any infirmity in the view taken by the learned Munsiff, I direct
the learned Munsiff to permit the petitioner as the suit goes for trial to
cross examine the advocate commissioner and to examine the Surveyor
on the basis of the objections filed by him to the interim report. Once
the petitioner adduces whatever evidence he may be able to adduce to
substantiate his contention that the property is even now identifiable and
once the entire evidence in the suit come on record, the court will hear
the parties on the question whether the report should be remitted to the
WPC Nos. 7096 & 19435
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3
commissioner. The approval granted by this court to the impugned order
will not stand in the way of the court in taking a decision on that
question. Decision will be taken by the court on that question before
final judgment is delivered in the suit. In view of the decision taken by
me in WP(C) 7096/04, it is not necessary that the correctness of Ext.P4
and P3 impugned in WP(C) 19435/04 is examined since both those
orders have been issued as orders consequential to Ext.P4 in WP(C)
7096/04.
The petitioner will get the benefit of the directions herein only if he
has filed an application for restoration of the suit at least as on today. If
any such application is pending, the court will favourably consider that
application and thereafter ensure compliance with the directions in my
judgments.
PIUS C. KURIAKOSE, JUDGE
btt
WPC Nos. 7096 & 19435
0f 2004
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