IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23543 of 2008(C)
1. JOSEKUTTY
... Petitioner
Vs
1. TOM SOJAN
... Respondent
For Petitioner :SRI.M.NARENDRA KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :05/08/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.23543 of 2008
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Dated this the 5th August, 2008.
J U D G M E N T
Petitioner is the second plaintiff and respondents the
defendants in O.S.No.131 of 2004, on the file of Sub Court, Palakkad.
The suit is for cancellation of registered documents Nos.2384, 2385
and 2386 of 2004 of SRO, Erumeli, and for permanent prohibitory
injunction restraining respondents from creating any document or
inducting strangers to the property or from committing waste in the
plaint schedule property. Petitioner filed I.A.No.706/2008, an
application for appointment of a commission. Under Ext.P5 order, the
petition was dismissed. This petition is filed under Article 227 of the
Constitution of India to quash Ext.P5 order and to appoint a
Commission.
2. The learned counsel appearing for the petitioner was
heard.
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3. The argument of the learned counsel is that the
report of the Commissioner as sought for is relevant and necessary to
prove the case of the plaintiffs and therefore learned Sub Judge should
have allowed the application. The learned counsel argued that as per
document No.2386 of 2004, 10 cents was gifted stating that it was
inclusive of the residential house and if a report is submitted
identifying the property covered by the document, it can be proved
that a portion of the residential house is outside the 10 cents covered
by the document, and, therefore, learned Sub Judge should have
allowed the application.
4. On hearing the learned counsel and on going
through Ext.P5 order, I do not find any illegality or irregularity in the
impugned order warranting interference. It is seen from Ext.P3
application filed by the petitioner for appointment of a commission that
in paragraph 3 of the affidavit, it was specifically contended that a
portion of the residential house stands outside the 10 cents covered by
the document. Ext.P4 objection filed by the respondents did not
contain a specific denial of that case. Petitioner is entitled to give
evidence in support of his claim. If at the time of recording the
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evidence, court finds that for deciding the question a Commission is
to be appointed, then Ext.P5 order will not stand in the way.
Writ petition is disposed as above.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.