Panayanthatta Kunjiraman Nambiar vs Kozhummal Chattadi Valsala And Ors

\

This Original Petition is filed by the plaintiff being aggrieved by the impugned order dated 8.6.2015 passed by the learned Munsiff, Payyannur in O.S.No.177 of 2012. The suit filed is one for injunction seeking to restrain the respondents/defendants from trespassing into the plaint schedule 53 cents of land. During the course of the suit, the petitioner applied for issue of Commission to ascertain and identify the plaint property on the basis of pattayam obtained in his favour as well as to identify the property transferred to third party from the pattayam land.

The Commissioner after visiting the property submitted Exhibit P2 Commission report and plan to which the petitioner took strong objection and sought remittal on the ground that the property was not precisely identified with reference to pattayam as well as other title deeds in favour of the parties. After hearing both parties, the court below refused to order remittal of the commission report holding that the Commissioner clearly identified the property as per the records with the assistance of the Taluk Surveyor.

The plaintiff is seriously aggrieved by the finding of the court below as well as refusal to order remittal of the report.

I heard the counsel appearing on both sides.

The learned counsel for the petitioner submitted that the petitioner did not get sufficient opportunity to substantiate objections taken to commission report by examining the Commissioner. On the other hand, the learned counsel for the respondents submitted that the plan has been prepared by the Commissioner in accordance with title deeds and there is no need to interfere with the impugned order.

I am of the opinion that the submission made by the petitioner's counsel appears to be reasonable. In order to substantiate objections taken to the commission report, an opportunity should be given to the petitioner to examine the Commissioner.

In the nature of view that has been taken, the impugned order cannot be allowed to sustain. It is liable to be set aside.

In the result, the O.P.(C) No.1657 of 2015 is allowed and the impugned order is set aside. The petitioner/plaintiff will get an opportunity to examine the Commissioner before the court below and the court will decide the issue as to identify in accordance with law. Since the suit being of the year 2012, the court below shall take all necessary steps to expedite the trial of the suit within a period of six months from the date of receipt of a certified copy of this order.