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Judgment
Thomas P. Joseph, J.—Ext. P5, order dated 25.11.2011 on I.A. No. 2393 of 2010 in O.S. No. 272 of 2007 of the Munsiff''s Court, Kayamkulam is under challenge in this original petition at the instance of the 2nd defendant in the suit. The 1st defendant is the husband of the petitioner, working abroad, but represented by a counsel in the trial court. The respondent/plaintiff sued the petitioner and 1st defendant for fixation of boundary with respect to the suit property and for prohibitory injunction. The petitioner and the 1st defendant filed written statement resisting claim of the respondent.
The trial court appointed an Advocate Commissioner to measure the properties with the assistance of a retired Surveyor. The Advocate Commissioner submitted Ext. P3, report and plan. That was followed by the petitioner filing I.A. No. 2393 of 2010 to set aside the report and plan. That application was resisted by the respondents.
On I.A. No. 2393 of 2010 the Advocate Commissioner and the Surveyor were examined as CWs 1 and 2. The documents relied on by the parties were also accepted in evidence. The trial court by Ext. P5, order stated that though it would appear that no notice was issued to the petitioner or the 1st defendant before the inspection, evidence revealed that the petitioner was present at the spot and that at any rate, no prejudice has been caused to the petitioner or the 1st defendant. The trial court remitted the report and plan for a limited purpose with certain directions. Ext. P5, order is under challenge.
The learned counsel has contended that inspection and measurement were without notice to the petitioner and the 1st defendant or their counsel. It is further argued that the measurement was not with reference to the documents of title relied on by the respondent or any survey plan or other record obtained from the Village Office or Taluk Office. Therefore, Ext. P3, report and plan cannot be sustained and are liable to be set aside.
The learned counsel for the respondent submitted that the petitioner was present at the spot at the time of inspection. It is also pointed out by the learned counsel that at any rate, absence of notice to the petitioner and the 1st defendant has not resulted in any prejudice to the petitioner or the 1st defendant. According to the learned counsel, there is no reason to interfere with Ext. P3, report and plan.
It is seen from Ext. P3 that the Advocate Commissioner had issued notice by registered post to the 1st defendant (in his house address). There is no reference in Ext. P3 that notice was either given to the counsel for the 1st defendant or to the petitioner or her counsel. At the relevant time the 1st defendant was working abroad. Notice was issued in his house address and it was returned as the addressee was abroad, a few days after the inspection. Thus, the evidence would show that no notice was given by the Advocate Commissioner before the inspection either to the petitioner or the 1st defendant or their counsel.
The learned counsel for the respondent has pointed out that the petitioner was present at the time of inspection and measurement of the property. The learned counsel for the petitioner submits that at the fag end of the inspection, the petitioner happened to be at the spot. I am not inclined to think that without notice of the inspection to the 1st defendant, that petitioner, wife of the 1st defendant happened to be at the place of inspection at the some point of time is sufficient to show that e inspection was made with notice to the petitioner and the 1st defendant. There is no reason why the Advocate Commissioner should have measured the properties without notice to the parties/counsel.
When the Advocate Commissioner was examined as CW1, he stated that he had not taken Ext. A1 (the title deed relied on by the respondent) from the court and that measurement was based on the plan brought by the retired Surveyor. The retired Surveyor when examined as CW2 stated that the Advocate Commissioner had handed over the plan to him but, he had not verified the authenticity of the plan. The Advocate Commissioner has no such case. It is also admitted that no record from the Village Office or other department concerned was made use of for measurement of the property.
In other words, there is serious doubt as to whether any document at all was made use of, for measurement of the property and if so, about its authenticity. In the circumstances, the report and plan prepared by the Advocate Commissioner and the retired Surveyor cannot be accepted. It is idle to contend that no prejudice is caused to the petitioner or the 1st defendant. Measuring the properties without notice to them is by itself prejudice. Having regard to the above circumstances I am inclined to think that what is required is not a remission of the report for a limited purpose but, the report itself has to go. When the service of the Taluk Surveyor can be availed of, it is appropriate that it is so done. Only if that course is not possible or practical, one need go for the service of a retired Surveyor.
Resultantly the original petition is allowed as under:
i. Ext. P5, order on I.A. No. 2393 of 2010 in O.S. No. 272 of 2007 of the Munsiff''s Court, Kayamkulam is set aside.
ii. I.A. No. 2393 of 2010 will stand allowed.
iii. The learned Munsiff, Kayamkulam is directed to appoint the Taluk Surveyor for measurement of properties and after hearing the parties pass appropriate orders on I.A. No. 1385 of 2009 for measurement of the properties with reference to the relevant documents either produced by the parties or summoned from the Offices concerned.
iv. The learned Munsiff is directed to expedite proceedings since the suit is of the year, 2007.