IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12608 of 2008(A)
1. PRABHAKARAN, AGED 63, S/O.RAMAN NAIR
... Petitioner
2. SWARNAKUMARI AMMA, W/O.PRABHAKARAN
Vs
1. RAMESH, S/O.SANKU, KOOTTALA VEEDU
... Respondent
2. ANILAN, S/O.PUSHKARAN
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.12608 of 2008
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Dated this the 20th June, 2008.
J U D G M E N T
Petitioners are the defendants and the respondents,
plaintiffs in the suit. Under Ext.P9 order dated 2.4.2008, learned
Munsiff appointed a Commission as sought for by the respondents.
Under Ext.P7 commission application, plaintiffs sought to measure the
property of the defendants and to fix the boundary. It is for that
reason, petitioners contended before the learned Munsiff that a
commission cannot be appointed as sought for. Though objection was
filed, learned Munsiff did not consider the objection. Instead stating
that plaintiffs are concerned about fixation of their boundary, it was
found that commission is to be appointed. Evidently, learned Munsiff
has not gone through the prayer in I.A.No.1090/2008, as well as
Ext.P8 objection filed by the petitioners.
2. Though notice was served on the respondents, they
did not appear. The learned counsel appearing for the petitioners was
heard.
W.P.(C) No.12608/2008
2
3. The argument of the learned counsel is that learned
Munsiff did not consider the objection and allowed Ext.P7 application
on the impression that prayer is to measure the property of the
plaintiffs, when in fact the prayer in Ext.P7 is to measure the property
of the defendants. Ext.P7 fortifies the said submission. In such
circumstances, Ext.P9 order is quashed. Munsiff is directed to pass
appropriate orders afresh in I.A.No.1090/2008, after hearing the
parties and considering Ext.P8 objection. Munsiff has to bear in mind
that in a suit for fixation of boundary, what is to be fixed is the
boundary of the plaint schedule property and not that of the
defendants.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.