PUNNAKKOTTU PATHUKUTTY Vs. LATHEEF,

JUDGEMENT

(1.) RESPONDENT though served remains absent.

(2.) PLAINTIFF in O.S. No. 543 of 2009 of the court of learned Additional Munsiff -I, Kozhikode challenges Ext.P8, order refusing to remit the report submitted by the Advocate Commissioner and to conduct further investigation by the Advocate Commissioner regarding the damage allegedly suffered by the petitioner on account of the act of respondents and identify the suit property properly. Petitioner sued for a decree for prohibitory injunction against respondents trespassing into the suit property. There was an order of interim injunction granted in favour of petitioner and the Advocate Commissioner inspected the property and submitted report. According to the Advocate Commissioner, on the north of suit property is Waynad road and on its east and south of the property there is pathway. It is the case of petitioner that violating the order of injunction respondents demolished a portion of boundary of the suit property. Advocate Commissioner again inspected the property and submitted report. It is the grievance of petitioner that Advocate Commissioner did not assess damage caused by demolition of the boundary. It is also the grievance of petitioner that there is no proper identification of property and the report of Advocate Commissioner that on the south of suit property there is pathway is not correct. Petitioner filed I.A. No. 805 of 2010 to remit the report for further investigation, collect evidence regarding damage caused and for proper identification of the property. That application was dismissed by the learned Munsiff vide Ext.P8, order observing inter alia that if further datas are required or the court finds it to be necessary to depute the Advocate Commissioner again, Ext.P8, order will not preclude the court from doing so and that at present, the application cannot be entertained. Learned Counsel has referred me to Exts.P7(a), plan of the property said to be prepared by a private surveyor which according to learned Counsel revealed correct lie and identity of the suit property. I am told that the case is coming up for trial in the list on 25 -10 -2010. In the light of the observation made by learned Munsiff which I have stated above that if necessary the court will depute a Commissioner again for reporting matters required for the decision of the case, I do not find reason to interfere in the matter. I make it clear that it will be open to the petitioner to adduce evidence in support of his case as to the lie and identity of property as revealed by the plan prepared by the private surveyor and if circumstances warranted, it will be open to the learned Munsiff to depute the same Commissioner or another Commissioner for identification of the property or collect further datas as are required for a just and proper decision of the suit.