Dated, this the 10th January, 2024 The petitioners herein are defendants 4, 5 and 7 in the suit, O.S.No.450/2016, of the Principal Munsiff Court, Kottayam. They are aggrieved by Ext.P5 order, which rejected an application for issuance of a Commission to measure out the plaint schedule properties.

2. Heard the learned counsel for the petitioners and the respondents.

3. Learned counsel for the petitioners submitted that the suit is one for fixation of boundary and also for rectification of a mistake in the re-survey plan. The defendants (petitioners herein) were originally set ex-parte. An application for Measurement Commission was made by the plaintiffs, which was allowed and Ext.P3 report was filed. After getting the ex-parte order set aside, the defendants filed written statement, specifically contending that there was trespass to the extent of 3.5 cents made by the plaintiffs and that they have interfered with the pre-existing boundary. That apart, the learned counsel specifically relied upon the finding in Ext.P3 Commission Report, that the plaint schedule properties could not be measured, on the basis of the title documents, for the reason that the side measurement are not available in the title document and that the old survey plan was not made available. It was further reported by the Commissioner that there is difference in the extent of the property after re-survey. It is in such circumstances that the petitioners (defendants in the suit) preferred Ext.P4 application to measure out the properties, on the basis of the old survey map and the re-survey map, so as to enable fixation of boundary. The same was rejected vide Ext.P5 order, based on an erroneous finding that the defendants have no case that plaintiffs had encroached into the property of the defendants. Yet another finding of the learned Munsiff in choosing to dismiss Ext.P4 application was that no patent error or illegality was pointed out as against Ext.P3 report and plan. Learned counsel would submit that Ext.P5 order is bad in law, warranting interference under Article 227 of the Constitution of India.

4. Per contra, the above submissions were seriously refuted by the learned counsel for the respondents. Learned counsel would point out that at the time of inspection, which led to Ext.P3 Commission Report, the defendants were present and that no objection, whatsoever, has been preferred to Ext.P3 Commission Report, though the same was filed as early as on 21.11.2022. It was then pointed out that the trial in the suit has already been commenced on 04.01.2024; PW1 was examined and Exts.A1 to A10 were marked, besides marking Exts.C1 and C1(a) Commission Report and plan. The case stands posted to 16.01.2024 for further evidence of the plaintiff.

Finally, learned counsel pointed out that no reason, whatsoever, has been stated in Ext.P4 application for applying for a second commission. On such premise, the respondents seek to sustain Ext.P5 order.

5. Having heard the learned counsel appearing on both sides, this Court is of the opinion that Ext.P5 order cannot be sustained. The primary thing to be taken note of is the relief sought for in the suit, that is to say, for fixation of the boundary between the plaint schedule item nos.1 and 2 and also for correction of an alleged mistake in the re-survey plan. In Ext.P3 report, the Commissioner categorically arrived at the following conclusion:

"ടടി ആധധാര്ᨲൾകᨪ᪚ ശശേഷഷം ററീസർവᩪ᪓ നടᨪ᪎കയഷം വടിസറീർ്ᩆതടിൽ വ്ᩤത്ᩤധാസഷം വരടികയഷം വചെയᨪ᪚ തടിᨾ᪎്ᩦതധായടി ലഭ്ᩤമധായ ശരഖകൾ്ᩚകധാരഷം കധാണധാവു്ᩐതഷം കൂടധാവത ടടി ആധധാര്ᨲളടിൽ വᩜ᪎കളുവട സസഡᨪ᪚ അളവുകശളധാ പധാനുകശളധാ ഇലധാതതടിനധാലഷം പഴയ സർവᩪ᪓ പധാൻ ഇരുഭധാഗᩈ᪎നടിനഷം ലഭ്ᩤമധാകടിയടിടടിലധാതതടിനധാലഷം പടടിക വᩜ᪎കൾ ആധധാര്ᩚകധാരഷം

അളᨪ᪎വധാൻ സധാധടിചടിടടിലധാതതധാകുന...”

6. It could thus be seen that the plaint schedule properties could not be measured on the basis of the documents, since no side measurements were referred to in the title documents and that the old survey plan was not made available at the time of inspe