VIJU Vs. SOLLY

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.