JUDGMENT

The petitioner assails the order passed in IA No.1/2021 in IA No.4192/2013 in OS No.2820/2012 (Ext P13) of the Court of the Additional Munsiff-I, Thrissur, in this original petition.

2. The skeletal facts, relevant for the determination of the original petition are: the petitioner is the defendant in OS No.2820/2012, filed by the respondents for the fixation of the southern boundary of the plaint schedule property with the assistance of the Taluk Surveyor. The respondent has alleged that the petitioner has encroached into his property. The petitioner has resisted the suit by filing Ext P2 written statement. Along with the suit, the respondents had filed an application to appoint an Advocate Commissioner. The Advocate Commissioner by Ext P3 report has found evidence of the removal of the survey stone. Hence, the petitioner sought for the remission of the commission report for fixing the boundary, which was allowed by the court below. In Ext P4 report, the Advocate Commissioner found that the survey stone was recently removed. However, as the Advocate Commissioner was unable to identify and fix the boundary of the property on account of the absence of the survey stone. Then, the respondents filed yet another application to remit the commission report, which was also allowed. In Ext P5 report, it was, inter alia, found that the petitioner has encroached into the PWD road. The petitioner filed Ext P7 detailed objection to Ext P5 report and also Ext P6 application to set aside the report. The application was opposed by the respondents who had filed Ext P7 objection. Nonetheless, the petitioner based on the decision of this Court reported in Francis Assissi vs Sr.Breesiya [2017 (1) KLT 1041] had not pressed Ext P6 application. Later, based on Ext P9 report of a retired Taluk Surveyor, the petitioner had filed Ext P8 application to measure out the properties of the petitioner and the respondents by the Survey Superintendent after fixing the survey stone. The said application was also opposed by the respondents who had filed Ext P10 objection. The court below, without appreciating Ext P9 in its proper perspective, by the impugned Ext P11 order dismissed Ext P9. The petitioner challenged the same by filing OP (C)No.1938/2018 before this Court. This Court, by Ext P12 order dismissed the original petition, but observed that the petitioner would be at liberty to move a fresh application to remit the commission report at the appropriate stage. Then, the petitioner filed IA No.1/2021 to remit the commission report and measure the property under the supervision of the Village Officer. It is contended that, instead of the Village Officer, only a staff from the village office was deputed. The said application was also opposed by the respondents. The court below, by the impugned Ext P13 order, dismissed IA No.1/2021. Ext P13 is erroneous and wrong. Hence the original petition.

3. Heard; Sri.Arjun.S, the learned counsel appearing for the petitioner and Sri.R.Sudhish, the learned counsel appearing for the respondents.

4. Sri.Arjun.S argued that even though the court below had specifically directed the survey stone to be identified by the Village Officer, only a staff from the village office was present at the time of inspection. Hence, the order of the court below was not properly complied with by the Village Officer. Therefore, the report is unsustainable in law, warranting its remission and the Village Officer may be directed to himself to be personally present and identify the survey stone.

5. Sri.Sudhish, the learned counsel appearing for the respondents submitted that the original petition is bad for suppression of material facts. In fact, pursuant to the order dated 28.1.2020 passed by the court below, the Advocate Commissioner, Surveyor and an official of the Village Office were present in the plaint schedule property. The official of the Village Office had identified and fixed the survey stone. Based on the above inspection, the Ad