Viju and N. Mohanan vs Solly and Kerala Cars Pvt. Ltd.

K.T. Sankaran, J.—Defendants 1 and 2 in O.S. No. 1026 of 2008, I Additional Sub Court, Ernakulam, are aggrieved by the order dated 28.2.2011 in I.A. No. 6245 of 2010.

The suit was filed by the first Respondent for fixation of boundary of the plaint ''A'' schedule property. The property belonged to the father of the Plaintiff and the first Defendant. He sold an extent of ten cents of land to the first Defendant. Thereafter, he executed a Will in respect of 28 cents of the balance property. As per the Will, an extent of ten cents was bequeathed to the Plaintiff and an extent of eighteen cents was bequeathed to the first Defendant.

A Commissioner was appointed to inspect the property with the help of the Taluk Surveyor. The Commissioner inspected the property on 12.2.2007 and 25.9.2007. It is stated in the report that the second inspection was at 3 PM on 25.9.2007 and that only the Plaintiff and her counsel were present. The first Defendant disputed this statement. The first Defendant contended that he was waiting for the arrival of the Commissioner from 3 PM to 5.30 PM on 25.9.2007, but the Commissioner did not visit the property by that time and therefore the first Defendant left the place. Various objections were raised to the Commissioner''s report. A contention was put forward that on inspection, it was found that there was reduction in the total extent of the property covered by the Will. According to the Plaintiff, there should not be any reduction in so far as the bequest to her is concerned. According to the first Defendant, there should be proportionate reduction of the deficit extent while allotting the property to both parties. It is alleged that the Commissioner accepted the interpretation made by the Plaintiff. Defendants 1 and 2 filed I.A. No. 6245 of 2010 to set aside the Commissioner''s report and plan. The Commissioner was examined. Other evidence was also adduced before the court below.

The court below disposed of I.A. No. 6245 of 2010, the application filed by Defendants 1 and 2 to set aside the Commissioner''s report, by the order impugned in this Original Petition. The court below remitted the Commissioner''s report to the same Commissioner with specific directions as to what should be done in the matter and how the plan should be prepared to meet the contentions of both the parties at the time of trial. The order was passed by the court below after considering all the relevant aspects and the contentions put forward by the parties. The order is clear and specific particularly with respect to the directions to be complied with by the Commissioner.

The grievance of the Petitioners is that they had raised allegations against the Commissioner and therefore, another Commissioner should have been appointed by the court below. In the objections to the Commissioner''s report, the Petitioners stated that the inspection on the second occasion was in their absence. In the affidavit accompanying the application for setting aside the Commissioner''s report, the Petitioners stated that the Commissioner has some "vested interest" and that was why he accepted the interpretation made by the Plaintiff as to how the deficit extent is to be dealt with. The inspection made by the Commissioner at 5.30 PM, in the absence of the Petitioners, was also raised as a ground for appointing another Commissioner. The learned Counsel for the Petitioners submitted that as is being usually done in Courts, all the allegations against the Commissioner would not be put in black and white and the allegations would be only mentioned at the time of hearing, in order to avoid the unpleasant situation. In the present case, I do not think that there would be any room for any such allegation at the time of the further inspection as ordered by the Court, as the Court had given specific directions to the Commissioner with respect to the inspection, measurement and preparation of the plan. I do not think that the order passed by the court below suffers from any infirmity or jurisdictional error warranting interference under Article 227 of the Constitution of India.

The Original Petition is, accordingly, dismissed.