Point of Law : when the plaintiff approached the learned Munsiff for fixing the southern boundary of his property, the Munsiff is bound to adjudicate the dispute and to give a verdict.

JUDGMENT :

Ext.P5 order dated 7.10.2015 in I.A. No.346/2015 in O.S.No.118/2012 on the file of the Munsiff Court, Kochi is the subject matter in this original petition. The petitioner herein is the plaintiff in the above suit. The respondent herein is the sole defendant therein.

2. I shall refer the parties in this petition as 'plaintiff' and 'defendant' hereinafter, for brevity and easy discussion.

3. The brief facts:

The plaintiff filed Original Suit No.118/2002 before the Munsiff Court for fixation of the southern boundary of the plaint 'A' Schedule property based on the title deed, viz. Will deed, executed by his father. The defendant therein is the brother of the plaintiff. The specific case put up by the plaintiff before the trial court is that, as per the Will deed executed by the father, a total extent of 15.300 cents of property owned by the father was allotted to the plaintiff and the defendant by way of a Will. As per the Will deed defendant was given seven cents on the south and 8.300 cents on its north was allotted to the plaintiff with a building. According to the plaintiff, he has been enjoying 8.300 cents with excess land and the building therein.

4. Since the Suit was one for fixation of boundary, a commissioner with the aid of Surveyor was deputed on the application of the plaintiff. Accordingly, Advocate Commissioner, M.K. Murari filed Ext.P2 report along with the survey sketch. The defendant, who was aggrieved by the commission report and sketch, filed application, I.A. No.346/2015 to set aside the commission report and plan.

5. The learned Munsiff examined the commissioner and surveyor as PW1 and PW2 and finally set aside the commission report and plan holding that the commissioner did not remember as to whether measurement was done and fixed the north-western boundary and the commissioner alone would say the same etc. The observation made by the Munsiff appears in Paragraph 8 of Ext.P5 order is as follows:

“The evidence shows that the properties were measured exclusively as per the will. PW1, the Commissioner deposed that he does not remember as to whether measurement was done after fixing the north-western boundary. According to him, only the surveyor could say whether the north-western boundary was seen 30 cm away. He deposed that there is a projection to the west of the western boundary. PW2, the surveyor also could not recollect as to whether the northern boundary situates 30 cm away. To a question as to whether there is a projection as aforesaid, PW2 pleaded ignorance. One must note that Ext.P1 sketch clearly depicts such a projection on the western boundary. PW2's evidence shows that the excess land is shown I survey numbers 51/1 and 51/2. The question as to how excess land happened to be included in different survey numbers necessarily remains unanswered. Neither PW1 nor PW2 could give a proper explanation for the aforesaid shortcomings. Defendant has also pointed out that in the second sketch, though the extent of the A schedule property is shown as 3.36, when measured, it would be 3.39 ares. It is also stated that the actual extent of B schedule property is only 2.73 ares instead of 2.83 ares. The above circumstances show that the report and plan do not reflect the real state of affairs and are not acceptable.

6. Relying on a decision reported in [2008 (4) KHC 203 Bhaskaran v. Kamalakshi & Others], learned Munsiff set aside Ext.C1 report and C1 (2) plan, which is Exhibit P2 herein. The operative portion of the order is as under:

The petition is allowed and Ext.C1 and C1 (2) plan are set aside.

7. Aggrieved by the said order, Ext.P5, the plaintiff approached this Court under Article 227 of the Constitution of India.

8. Heard Sri. K.S. Ajayaghosh, learned Counsel appearing for the petitioner/plaintiff and Sri. Antony Mathew Skaria, learned Counsel appearing for the respondent/defendant. Perused the records of the trial court produced along with the original petition.

9. It is argued by the learned Counsel for t