JOY CHERIAN Vs. GEORGE CHERIAN

JUDGEMENT

(1.) The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs:

(2.) Petitioner is the respondent in A.S. No. 110/2008 on the file of the Sub Court, Perumbavoor. The appeal is filed by the respondent against the dismissal of his suit, O.S. No. 199/2006 on the file of the Munsiff's Court, Perumbavoor, in which, he claimed reliefs of fixation of boundaries and perpetual prohibitory injunction against the defendant/petitioner in the writ petition. Ext.P1 is the judgment rendered by the learned Munsiff, dismissing the suit. In the appeal, against Ext.P1 judgment and decree, appellant/plaintiff moved an application for appointing a Commission to identify the suit property. Overruling the objections raised by the respondent in the appeal, the application was allowed, appointing an Advocate Commissioner to measure the suit property, with the assistance of a retired surveyor, and identify the properties of the appellant/plaintiff and respondent/defendant. Ext.P5 is that order. Impeaching the correctness of that order, contending that it is patently illegal to appoint a fresh Commission, without setting aside the Commission report and plan already prepared in the trial of the suit and exhibited in evidence as Exts.C1 and C1 (a) respectively, the petitioner seeks the aid of supervisory jurisdiction of this Court, filing this writ petition, to quash that order.

(3.) I heard the learned counsel on both sides. When a report is already collected and forms part of the records of the case, without adjudging its merits and then, on finding that it is liable to be set aside, no fresh Commission can be appointed for the very same purpose, that of identifying the suit property, and so much so, the learned Sub Judge went wrong in passing Ext.P5 order, and it is liable to be set aside, is the submission of the learned counsel for the petitioner. In the memorandum of appeal, copy of which is produced as Ext.P3, no ground was taken that the Commission report and plan, exhibited as Ext.C1 and C1 (a) are deficient in any manner, and as such, a fresh Commission has to be appointed for identification of the property, is also canvassed by the learned counsel for the petitioner to contend that the request made before the appellate court by the plaintiff for appointment of a fresh Commission was not justified and the order allowing the application by the appellate court is erroneous and unsustainable. The learned counsel for the respondent, inviting my attention to Ext.P1 judgment, submitted that the suit happened to be dismissed solely on forming a conclusion that Exts.C1 and C1 (a), report and plan prepared by the Advocate Commissioner, are not sufficient to identify the suit properties. It was in that context, an application was moved before the appellate court for appointment of a fresh Commission, which was allowed under Ext.P5 order. No interference with that order, according to the counsel, is warranted in the facts of the case.