VARGHESE Vs. SHAMEEMA

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order in I.A.No. 317 of 1999 in O.S.No.28 of 1997 on the file of the Munsiff - Magistrate, Mananthavady. The suit was filed by the respondent against the revision petitioners - defendants for recovery of possession of plaint B schedule property on the strength of title. Plant B schedule property is a very small extent having a measurement of east - west 5 feet and north - west 132 feet. On the other hand, the contention of the revision petitioners would be that the suit property is included in their title deeds. When there are such rival contentions, a commissioner was appointed for identifying the properties. The commissioner has filed the report. Now the contentions raised on behalf of the revision petitioners would be that the Commissioner has not properly identified plaint B schedule property and therefore, an enquiry was sought for under sub-rule (2) of R.10 of Order XXVI C.P.C. Accordingly, an enquiry was conducted. The Commissioner and other witnesses were examined exhibits were marked and finally the impugned order was passed by the learned Munsiff under sub-rule (3) of R.10 O.26 C.P.C. that the court is satisfied with the report and plan.

(2.) Now, the arguments advanced by the learned counsel for the respondents would be that in view of the principles laid down by this court in 1996 (1) KLT 162 (Kanaran Nair v. Madhavan Nair and Mahamood v. Ali Hajee ( 1999 (3) KLT 220 ) the impugned order cannot be questioned under S.115 C.P.C. In other words, the contention of the learned counsel for the respondents would be that the C.R.P. itself is not maintainable. In view of the above submission of the learned counsel for the respondents the principle laid down in the above two decisions of this court can be extracted hereunder. In 1996 (1) KLT 162 , the principle laid down is as follows: -

(3.) From the above two decisions, it is so clear that no detailed enquiry has been conducted under sub-rule (2) of R.10 of O.26 C.P.C. and consequently no final order was passed under sub-rule (3) of R.10 of O.26. But in the instant case before me, the impugned order was passed after conducting an enquiry under sub-rule (2) of R.10 of O.26 C.P.C. Therefore, I am of the view that it is a final order and a revision will lie under S.115 C.P.C.