IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22965 of 2009(O)
1. PAUL, S/O.KANICHAI ANTONY,
... Petitioner
Vs
1. PAULSON, S/O.KANICHAI KOCHAPPU,
... Respondent
2. ROSILY, W/O.PAULSON, KANICHAL HOUSE,
For Petitioner :SRI.K.B.PRADEEP
For Respondent :SRI.C.P.SAJI
The Hon'ble MR. Justice P.BHAVADASAN
Dated :07/04/2010
O R D E R
P.BHAVADASAN, J.
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W.P (C) No.22965 of 2009
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Dated this the 7th April, 2010
J U D G M E N T
In this writ petition under Articles 226 and 227 of the
Constitution of India, the prayer made is that the order
passed by the court below on I.A No.1823/08 in O.S
No.530/07 be set aside and the court below be directed to
pass fresh orders on the petition, after hearing the
petitioner.
2. Petitioner instituted O.S No.530/07 seeking
permanent prohibitory injunction restraining the
respondents from trespassing into the plaint schedule
property. Not only the defendants denied the allegations
in the plaint, but also raised a counter claim. They sought
for a decree to put up boundaries demarcating the
properties of the plaintiff and the defendants.
3. Along with the suit, petitioner had moved for an
appointment of Advocate Commissioner. The
Commissioner filed his report i.e. Ext.P3. Petitioner
would say that there is a clear demarcation of the
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properties of the petitioner and respondents. Various
other factors are stated in the writ petition which are not
necessary for the purpose. Suffice to say that respondents
before this Court had filed an I.A No. 1823/2008 on
3.10.2008. Copy of which is produced as Ext.P5. In spite
of the objection filed by the petitioner, the court below
allowed the application and Ext.P6 order was passed.
Petitioner challenged the same in W.P. (C) No.1343/2009
and the said writ petition was disposed of by Ext.P7
judgment. The said judgment made it clear that it is for
the respondents to produce necessary title deeds for
identifying the properties and the petitioner was also
permitted to file a work memo.
4. Pursuant to Ext.P7 judgment, it is stated that the
court below chose to depute a Commissioner for
inspecting, measuring and demarcating the property. The
Advocate Commissioner had filed an interim report on
31.7.2009. The direction given to the Commissioner was to
identify the boundaries between the properties of the
plaintiff and the defendants. The case was posted on
W.P (C) No.22965 of 2009
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31.7.2009 for report. The report was filed. The complaint
of the petitioner is that without hearing the objection to
the commissioner’s report, further orders have been
passed. The Commissioner has reported that there is no
boundary. Thereafter the court below took the matter and
passed an order on I.A No.1823/2008.
5. Learned counsel appearing for the respondents
pointed out that there is no merit in the contentions raised
by the petitioner. Petitioner has produced a copy of B-
Diary before this Court. It is seen that on. 31.7.2009, the
commissioner filed an interim report in which he pointed
out that in order to conduct the measurement, Village
Officer’s help is necessary since there is no boundary.
6. The grievance of the petitioner is that he did
not even given an opportunity to peruse the records. He
has serious objections to the various statements made in
the report. Without giving an opportunity of raising his
objection, subsequent order has been passed.
7. One of the issues in this case is regarding the
boundary between the plaintiff’s property and defendant’s
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property. Plaintiff claimed that there was clear
demarcation between the plaintiffs’ property and the
defendants property. It is seen that the case was posted on
31.7.2009 for filing commissioner’s report. On that day
Commissioner is seen to have filed an interim report. What
is submitted by the petitioner is that his objections to the
interim report filed by the Commissioner had not been
considered and subsequent order was passed without
giving an opportunity of hearing to the petitioner. If that
be so, order is unsustainable in law.
8. In the result, petition is allowed. The impugned
order is set aside and the court below is directed to take up
I.A. No.1823/2008 in O.S No.530/07 for fresh consideration
and pass orders thereon, after giving an opportunity of
hearing to both sides, as early as possible, at any rate,
within one month from the date of re-opening of the courts
after summer vacation.
P.BHAVADASAN, JUDGE
ma
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