IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25665 of 2008(E)
1. GALFAR INDIA PRIVATE LIMITED
... Petitioner
Vs
1. JOSEPH & OTHERS
... Respondent
For Petitioner :SRI.V.M.KURIAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :26/08/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.25665 of 2008
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Dated this the 26th August, 2008.
J U D G M E N T
This petition is filed under Article 227 of the
Constitution of India challenging Exts.P11 and P12 orders passed
by Munsiff, Ernakulam, in I.A.No.9466 of 2006 and I.A.No.5911
of 2007. I.A.No.9466 of 2006 is an application filed by the
defendant-petitioner to set aside the report submitted by the
Commissioner. Under Ext.P11 order, learned Munsiff after
examination of the Commissioner, remitted the report with a
direction to conduct the measurement with the assistance of
District Survey Superintendent. Learned Munsiff specifically
directed the Commissioner and the District Survey
Superintendent, first to fix the entire property comprised in
Survey No.552/1 including Survey No.552/2, and, thereafter to
fix the property in Survey No.552/2 and then 1.20 acres as per
the document No.958/62 and then to measure and fix the
properties covered under document No.620/63 and then to fix
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the property covered by document No.506/65, and thereafter the
properties assigned to the defendant as per the seven
documents. It includes document No.1201/1093.
2. The argument of the learned counsel appearing
for the petitioner is that Commissioner had tampered with the
plan submitted to him by the surveyor and inspite of that
learned Munsiff did not set aside the report and plan and instead
directed the same Commissioner to execute the work, and,
therefore, Ext.P11 order is to be quashed.
3. Under Ext.P11 order, learned Munsiff has given
sufficient directions and has also taken precaution.
Commissioner cannot do any thing without the assistance of the
District Survey Superintendent. Trial Court has given necessary
directions as to how the properties are to be identified and
located. In such circumstances, I do not find any reason to
interfere with Ext.P11 order. When the Commissioner with the
assistance of the District Survey Superintendent submits a report
and plan, petitioner is entitled to file an objection to the report
taking up all the contentions available to him.
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4. Under Ext.P12 order, learned Munsiff has
dismissed Ext.P7 application. Ext.P7 is an application to appoint
an Advocate Commissioner to measure plaint schedule property
with the assistance of Taluk Surveyor and to find out the property
which was in the possession of the original plaintiff in Old survey
No.552/1. A commissioner cannot be directed to find out the
possession of the property which was in the possession of the
original plaintiff, which cannot be relegated to the Commissioner.
The question of possession is to be proved before the court on
other evidence.
5. Learned counsel then submitted that Ext.P2
work memo was submitted to the Commissioner which was not
considered and therefore atleast a direction may be given to the
Commissioner to identify and verify the property covered by
document No. 1201/1093, and to measure out the property, as
per the resurvey records. Ext.P11 order directs the
Commissioner to identify the property and also to verify the
property with reference to the documents including the
documents in favour of the petitioner. It necessary includes
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document No.1201/1093. When direction is to find and identify
the properties in Survey No.552/1 and 552/2, necessarily the
properties are to be identified with reference to resurvey plan
also. In such circumstances, there need not be a further
direction. The writ petition is dismissed. Petitioner is entitled to
challenge Exts.P11 and P12 orders along with the final
judgment, if it goes against him.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.