Chacko vs Kurian and Jacob

Thomas P. Joseph, J.—Exhibit P7, order dated 18.12.2009 on I.A. No. 430 of 2009 in O.S. No. 21 of 2009 of the court of learned Munsiff, Kolencherry is under challenge. That is an application filed by petitioner to remit Exts.P5 and P5(a), report and plan prepared by the Advocate Commissioner with the assistance of a retired Surveyor. Petitioner sued for fixation of eastern and northern boundaries of the suit property and a consequential relief of injunction. According to the petitioner he has title and possession over 8.90 Ares in R.S. No. 328/13 of Aikkaranadu South Village as per sale deed No. 3638 of 1991. Petitioner filed I.A. No. 301 of 2008 to appoint an Advocate Commissioner to measure the property on the basis of sale deed No. 3638 of 1991. That application was allowed and Advocate Commissioner with the assistance of Surveyor measured the property with reference to the document of title relied on by the petitioner. As per Ext.P5 and P5(a) property found to be in the possession of petitioner is 7.75 Ares in R.S. No. 328/13 marked as plot A in Ext.P5(a) plan. Advocate Commissioner also found that a bit of land measuring 0.15 sq. mts. towards north-eastern portion of the suit property formed part of public road. That portion is plot B in Ext.P5(a), plan. That bit of land taken along with the land in the possession of the petitioner brought the total extent to 7.90 Ares. Petitioner was not satisfied with Exts.P5 and P5(a), report and plan and filed I.A. No. 430 of 2009 to remit the said report and plan. That application was dismissed by the learned Munsiff for the reason that it was belated and since prima facie there was no reason to disbelieve the measurement effected by the Advocate Commissioner. Learned Counsel for petitioner contends that Ext.P5, report contradicts with the earlier report submitted by the Advocate Commissioner and that measurement made by the Surveyor is not proper. It is also contended that learned Munsiff has passed a non-speaking order.

True, detailed reasons are not found in the impugned order. But reason for dismissal of the application is discernible from Ext.P7, order that the application is belated and secondly, there was no reason to disbelieve measurement effected by the Advocate Commissioner with the assistance of the Surveyor. In other words, learned Munsiff found no reason to remit the report and plan.

I have gone through I.A. No. 430 of 2009 filed by the petitioner to remit Exts.P5 and P5(a). Apart from certain generalised allegations regarding defect and inadequacy of the plan what is stated is that the plan does not show the ladder so that extent of the property could be determined. I do not find any other objection to the report and plan in the application to remit the report and plan. So far as extent of the property is concerned it is possible to determine the same while examining the Advocate Commissioner or the Surveyor during the time of trial on the basis of the details given in the plan. The Surveyor has given the relevant measurements of the property. Extent of A and B schedules is also given. I do not find any inadequacy in the report which could be stated to be of grievous nature which, if not corrected would result in gross injustice. This Court in Sarojini v. Karthiyani Amma 2010 (KLT) SN 17 (Case No. 19) stated that supervisory jurisdiction of this Court under Article 227 of the Constitution is required to be exercised only to prevent gross injustice and normally an order passed over the report of the Advocate Commissioner is a matter to be considered with reference to the merit of the decision to be rendered in the suit or proceeding. Having gone through Exts.P5, P5(a) and the objection raised by the petitioner in I.A. No. 430 of 2009 I do not find reason to interfere with the impugned order.

Resultantly, Original Petition is dismissed.