Kerala High Court
Savithri Amma vs K.S.Sarojam on 1 July, 2008
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15820 of 2008(G)
1. SAVITHRI AMMA, D/O.KAMALAKSHMI AMMA,
... Petitioner
Vs
1. K.S.SAROJAM, W/O.VIKRAMAN PILLAI,
... Respondent
2. VIKRAMAN PILLAI, S/O.VELAYUDHAN PILLAI,
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.B.MOHANLAL
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.15820 of 2008
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Dated this the 1st July, 2008.
J U D G M E N T
Petitioner is the first plaintiff in O.S.No.30 of 2004, on the file of the Munsiff Court, Punalur. The suit was for fixation of boundary and for permanent prohibitory injunction. Second respondent is the first defendant in the suit. First respondent was not originally a defendant in the suit. She is the wife of the second respondent. She got herself impleaded in the suit by filing I.A.No.1152 of 2006 under Rule 10(2) of Order I of Code of Civil Procedure. Along with that application, she filed I.A.No.1153 of 2006, an application to review the order passed by the court, appointing a commission, in I.A.No.2747 of 2005. After allowing the petition for impleading, under Ext.P7 order, learned Munsiff reviewed the order appointing the commission also. This petition is filed under Article 227 of the Constitution of India challenging Ext.P7 order.
2. The learned counsel appearing for the petitioner and learned counsel appearing for the first respondent were heard. W.P.(C) No.15820/2008 2
3. Though a commission was appointed originally in I.A.No.2747/2005, under Ext.P7 order, it was reviewed. But Ext.P7 order does not show the fate of I.A.No.2747/2005, after review, and whether the petition for appointment of a commission was rejected or posted for further enquiry.
Being a suit for fixation of boundary, appointment of a commission to prepare a plan demarcating the plaint schedule property is absolutely necessary. Petitioner is claiming title to the plaint schedule property based on the partition deed entered into by their predecessor and the second respondent. First respondent is claiming title to a portion of the property, as per a Gift deed executed by the second respondent, allotted to second respondent under the same partition deed. Therefore, for proper resolution of the dispute, it is necessary to identify the property with reference to the title deeds, whereunder predecessor-in-interest of plaintiff and also second respondent obtained separate rights and the property covered by the Gift deed, executed by the second respondent in favour of the first respondent. Writ petition is allowed. Learned Munsiff is directed to appoint the same Commissioner to identify the plaint schedule property, the property belonging to first respondent under the Gift W.P.(C) No.15820/2008 3 deed executed by second respondent, as well as the property allotted to second respondent under the partition deed. As it is submitted that petitioner has already deposited the commission bata, at present, there is no necessity to deposit bata again. If necessary, court can pass appropriate orders later, on the commission bata to be paid by the petitioner.
M.SASIDHARAN NAMBIAR, JUDGE nj.