HIRADAYASWAMY v. MOKKAN @ MUTHAPPAN

BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS: -------------

#1. MOKKAN @ MUTHAPPAN, KOPPUMENON CHALLA, KOZHIPPARA POST, VADAKARAPATHY VILLAGE, CHITTUR TALUK.

#2. KOLANTHARAJ, S/O.MOKKAN @ MUTHAPPAN, -DO- -DO-. BY ADV. SRI.SOJAN MICHEAL R1,R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) 28345/2007 Y PETITIONER'S EXHIBITS: APPENDIX EXT.P1: EXT.P2: EXT.P3: EXT.P4: EXT.P5: EXT.P6: EXT.P7: TRUE COPY OF THE PLAINT IN OS NO.125/2005 ON THE FILE OF MUNSIFF'S COURT, CHITTUR TRUE COPY OF THE WRITTEN STATEMENT FILED IN OS NO.125/2005 ON THE FILE OF MUNSIFF'S COURT, CHITTUR TRUE COPY OF THE COMMISSION REPORT DATED 28.11.2005 SUBMITTED BY THE COMMISSIONER IN OS NO.125/2005 ON THE FILE OF MUNSIFF'S COURT, CHITTUR TRUE COPY OF THE SURVEY SKETCH DATED 28.11.2005 SUBMITTED BY THE COMMISSIONER ALONG WITH EXT.P3 TRUE COPY OF OBJECTION FILED TO EXT.P3 AND P4 BY THE PETITIONER TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA NO.1377/2006 IN OS NO.125/2005 ON THE FILE OF MUNSIFF'S COURT, CHITTUR TRUE COPY OF THE DEPOSITION OF THE ADVOCATE-COMMISSIONER, WHO WAS EXAMINED IN OS NO.125/2005 ON THE FILE OF MUNSIFF'S COURT, CHITTUR EXT.P8: TRUE COPY OF THE ORDER DATED 10.07.2007 PASSED IN IA NO.1377/2006 IN OS NO.125/2005 ON THE FILE OF MUNSIFF'S COURT, CHITTUR. -TRUE COPY- P.S. TO JUDGE M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.28345 OF 2007 =========================== Dated this the 27th day of May, 2008 JUDGMENT Petitioner is the plaintiff in O.S.125/05 on the file of Munsiff Court, Chittur. Respondents are the defendants. Suit is one for injunction simpliciter restraining respondents from trespassing into the plaint schedule property. Petitioner had originally taken out an ex parte commission. After respondents appeared, the same Commissioner was appointed. He submitted a report and plan after identifying the property. Petitioner filed I.A.1377/2006 to set aside the report and plan submitted by the Commissioner. It was dismissed under Ext.P8 report. It is challenged in this petition filed under Article 227 of the Constitution of India.

#2. Learned counsel appearing for the petitioner was heard.

#3. The argument of the learned counsel W.P.(C)28345/2007 2 appearing for the petitioner is that the Commissioner did not identify the property with reference to the old survey number. It was also pointed out that the Commissioner in his report submitted that the property was not identified with reference to the old survey number as the B.T.R was not available and at the time of her examination in the application, it was deposed that B.T.R was available and resurvey sub division was verified by the Commissioner with reference to the FMB and in such circumstance the property should have been identified with reference to the old survey records.

#3. On hearing the learned counsel I do not find any illegality or irregularity in Ext.P8 order.

#4. Considering the fact that the suit is only one for injunction simpliciter and not for fixation of boundaries, I do not find that any interference is called for in Ext.P8 order. Petitioner is at liberty to challenge Ext.P8 order along with the W.P.(C)28345/2007 3 final judgment if it goes against the petitioner. Petitioner is also entitled to adduce evidence in support of the objections raised in the application at the time of evidence. The observations in Ext.P8 order shall not be a hurdle to decide the dispute between the parties. Writ Petition is dismissed. tpl/- M.SASIDHARAN NAMBIAR JUDGE M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006