IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3933 of 2009(R)
1. M.P.GOVINDAN NAMBOOTHIRI,AGED 53 YRS,
... Petitioner
Vs
1. S.N.KESAVAN NAMBOOTHIRI, AGED 35 YRS,
... Respondent
2. E.SAVITHRY DEVI, AGED 74 YRS,
3. GOVINDAN NAMBOOTHIRI, AGED 55 YRS,
4. PRAMESWARAN NAMBOOTHIRI, AGED 51 YRS,
5. THIRUVANVANDOOR GRAMA PANCHAYATH,
For Petitioner :SRI.P.K.RAVISANKAR
For Respondent :SRI.S.KRISHNAMOORTHY
The Hon'ble MR. Justice K.T.SANKARAN
Dated :05/03/2009
O R D E R
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