IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2591 of 2009(H)
1. CHANDRASEKHARAN PILLAI,
... Petitioner
Vs
1. BHARGAVI AMMA,
... Respondent
2. VIJAYA KUMAR,
3. PADMAKUMAR,
4. GOPALAN NAIR,
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :28/01/2009
O R D E R
K.P. Balachandran, J.
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W.P.(C)No.2591 of 2009 H
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JUDGMENT
Petitioner is the plaintiff in O.S.No.29/04 on
the file of the Munsiff’s Court, Haripad. He
instituted the said suit against the respondents
for fixation of boundary, for permanent prohibitory
injunction as also for mandatory injunction.
Another suit O.S.No.46/04 was filed by defendants 1
and 3 in O.S.No.29/04 against the petitioner/
plaintiff for declaration of prescriptive easement
right of way. A counter claim was also advanced in
O.S.No.29/04 aforesaid. The two cases were being
jointly tried treating O.S.No.29/04 as the leading
case.
2. In the course of trial, the petitioner/
plaintiff filed a commission application for
measurement of the properties with the assistance
of a surveyor. The prayer was to measure out the
properties on the basis of partition Deed No.655/
1104 M.E. of Sub Registry Office, Karthikappally.
WPC 2591/09 2
Respondents also requested the court to ascertain
matters, which they set out in their objections
filed to the commission application. The trial
court allowed that prayer. The Commissioner filed
a report wherein, he has stated that even though
the old survey plan regarding plaint A, B and C
schedule properties was produced before him, that
was not a sub division plan and therefore, he could
not measure out the properties on the basis of old
survey plan and that therefore, he measured out the
properties on the basis of re-survey plan. He also
expressed his inability to measure out the property
on the basis of the old survey plan. However, the
petitioner filed an application (I.A. No.486/08) to
set aside the commission report. It was alleged
therein that the Commissioner refused to measure
out the properties on the basis of old survey plan
even though such a plan was produced before the
Commissioner.
WPC 2591/09 3
3. The court below observed that there is no
serious allegation regarding measurement of the
properties based on re-survey plan and therefore,
without setting aside the commission report, he
directed the Commissioner to measure out the
properties on the basis of old survey plan and
partition deed and ascertain items 1 to 4 mentioned
in I.A.No.1113/06. Accordingly, the Commissioner
filed another supplementary report wherein also, he
expressed his inability to locate the properties on
the basis of old survey plan. The court below was
of the view that the stand taken by the
Commissioner is true. The trial court, therefore,
disallowed the request to set aside that report as
well and observed that he is not prepared to direct
the Commissioner to do an impossible act and
dismissed the application for remitting the
commission report again. It was also observed that
both the cases are ripe for trial and are included
for trial in the special list to 4.2.2009 and that
WPC 2591/09 4
at the time of trial, if the petitioner/plaintiff
succeeds in producing more evidence to show that it
is possible to locate the properties on the basis
of old survey plan, his prayer for measuring out
the properties on the basis of old survey plan will
be considered at that stage. It is being
dissatisfied with the said order, dismissing I.A.
No.1688/08, that the petitioner/plaintiff has
approached this Court seeking to have Exhibit P15
order set aside and to direct the court below to
appoint a new Commissioner for ascertaining the
matters requested for in Exhibit P3 application and
also to prepare a report and plan in accordance
with old survey plan with the assistance of a Taluk
surveyor.
4. It is vehemently contended before me by the
learned counsel for the petitioner that Exhibits
P11 and P12 are sub division plans as per old
survey numbers and that the Commissioner could have
relied on on those sub division plans for the
WPC 2591/09 5
purpose of measuring out the properties as per old
survey plan. It is seen that both, in Exhibits P11
and P12, the Assistant Director of Survey and Land
Records, Central Survey office, Thiruvananthapuram
has endorsed that those are copies prepared during
the year 1959 by the concerned officials of Survey
Department, but not authenticated to be correct and
that for verifying with the originals, the
originals are not available now. Such being the
endorsement on Exhibits P11 and P12, it is futile
to contend that measurement as per old survey plan
and sub division sketch should have been made on
the basis of Exhibits P11 and P12 survey plans.
There is, thus, no merit in advancing a contention
that the commission report has to be set aside and
that a fresh commission has to be issued when the
petitioners are not able to furnish or cause to be
produced any plan in relation to the properties as
per old survey plan. However, the court below has
observed that at the time of trial, if the
WPC 2591/09 6
plaintiff succeeds in producing more evidence to
show that it is possible to locate the property on
the basis of old survey plan, his prayer for
measuring out the properties on the basis of old
survey plan will be considered at that stage. For
the said relief, proper application can be moved
before the trial court if at all circumstances
enable the petitioners to move such a petition
producing more evidence.
This writ petition, as matters stand, is devoid
of merit and is dismissed.
28th January, 2009 (K.P.Balachandran, Judge)
tkv
