IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 84 of 2010(O)
1. G.ABDULLA, S/O.MOHAMMED KUNHI,
... Petitioner
Vs
1. G.MOHAMMED, S/O.G.MOIDIN KUNHI,
... Respondent
For Petitioner :SRI.P.K.MUHAMMED
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :05/01/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.84 OF 2010
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Dated this the 5th day of January 2010
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JUDGMENT
The writ petition is filed seeking the following reliefs.
i) Issue a writ of certiorari or other appropriate writ,
order or direction to call for the records relating to the case
and to quash Exts.P6 and P9.
ii) Pass such other order or direction, as this Hon’ble
Court deems fit and proper to grant in the facts and
circumstances of the case.
iii) Direct the respondents to pay the cost of the
proceedings to the petitioner.
2. Petitioner is the defendant in O.S No. 261 of
2009 on the file the Principal Munsiff Court, Kasaragode.
Suit is for recovery of possession of two buildings situate in
‘A’ schedule property, and the respondent, the plaintiff. Suit
claim is resisted by the petitioner/defendant by filing a
written statement in which apart from disputing the title of
the plaintiff over the buildings situate in ‘A’ schedule
property which are sought to be recovered from his
possession, the identification of ‘A’ schedule property was
also disputed. On an application moved by the plaintiff for
W.P.(C).No.84 OF 2010 Page numbers
identification of plaint ‘A’ schedule property, negativing the
objections raised by the petitioner/defendant, the court
below ordered for deputing a commission to measure out
the property with reference to the title deeds with the
assistance of a surveyor. Ext.P6 is the copy of that order.
Petitioner/defendant moved an application to review Ext.P6
order. That application after hearing both sides was turned
down by the learned Munsiff vide Ext.P9 order. Propriety
and correctness of Ext.P6 and Ext.P9 orders is challenged in
the writ petition invoking the supervisory jurisdiction vested
with this court under Article 227 of the Constitution of India.
3. I heard the learned counsel for the petitioner.
Suit has been filed only for recovery of the two buildings for
which alone court fee had been paid by the plaintiff and so
much so, in the present suit, respondent/plaintiff cannot
canvass or seek for measuring out of ‘A’ schedule property
in which the buildings are stated to be situate is the main
argument projected by the learned Munsiff to assail Ext.P6
and Ext.P9 orders passed by the learned Munsiff. Perusing
Ext.P6 and Ext.P9 orders with reference to other exhibits
W.P.(C).No.84 OF 2010 Page numbers
tendered and taking note of the submissions made by the
counsel, I find no impropriety or illegality in the order passed
by the learned Munsiff allowing the commission application
for measuring out ‘A’ schedule property with reference to
the title deeds of the plaintiff especially where identification
of that property had been disputed by the defendant in his
written statement. After all commission report is only a
piece of evidence which is procured to assist the court to
adjudicate the disputes arising for consideration in a suit or
proceeding for its fair and proper disposal. Appointment of a
commission for identification of the property has to be
looked into with reference to the questions to be adjudicated
and not on the basis of the relief canvassed in the suit.
There is no merit in the writ petition, and it is dismissed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv