O R D E R

The challenge in this Original Petition is to Ext.P7 order dated 15.03.2017 in I.A.No.2187/2016 in O.S.No.323/2013. The petitioner is defendant No.2 in the original suit. The plaintiff and defendant No.1 are the respondents.

2. The plaintiff instituted the Original Suit for permanent prohibitory injunction. He pleaded that plaint A schedule property belonged to him. It is alleged that when he attempted to construct barbed wire fencing on the eastern and northern boundaries of the plaint schedule property, defendant No.2 made obstructions.

3. Defendant No.1 resisted the suit by filing a written statement along with a counter claim. He prayed for fixation of boundaries separating his property from the property of the plaintiff. The Court issued a Commission. An Advocate Commissioner and a Surveyor visited the property and prepared report and plan.

4. Defendant No.2 challenged the report of the Commissioner and sought remittal of the same on the following grounds:--

(1)The surveyor has not measured the properties as per Survey Plan and Field Books.

(2)The Surveyor has not measured the property as per an agreement of the year 1998.

(3) The identification of the plaint properties and counter claim schedule properties based on the title deeds of the parties is not sufficient.

(4) The entire property having an extent of 3.19 acres of land originally belonged to the predecessor-in-interest of the parties is to be identified.

5. The plaintiff resisted the application seeking remittal of the commission report.

6. The trial Court considered the contentions raised by the petitioner. The trial Court held that the allegation that the surveyor has not measured the property based on the relevant Survey Plan and Field Books is very vague. The Court below relied on the recitals in the Commission Report that he has measured the property as per survey plan. The Court below also noted that the Surveyor has shown the northern and western boundaries based on the re-survey plan.

7. Yet another contention of the petitioner was that the agreement executed in respect of a common way was not taken into account by the Commissioner while identifying the property. The trial Court observed that the parties claimed their right over the property based on their title deeds prior to the alleged execution of the agreement of the year 1998, and the Court came to the conclusion that the identification of the plaint schedule properties and counter claim schedule properties based on the title deeds of the parties is sufficient for a just decision in view of the nature of the disputes raised by the parties.

8. The trial Court has specifically adverted to the report of the Commissioner and concluded that the Surveyor has measured the property based on the title deeds, re-survey plan and other Revenue records.

9. The Court below further held that the identification of the total extent of land [3.19 acres] that belonged to the predecessor-in-interest of the parties is not at all required in a suit for fixation of boundaries. 10. I have gone through the impugned order. I failed to find any sufficient materials warranting interference of this Court under Article 227 of the Constitution of India. However, the petitioner is at liberty to raise all the contentions during the trial. The Courts below will have the liberty to remit the commission report, if it is found necessary during the course of trial.

The Original Petition is disposed of accordingly.

Sd/-

K.BABU, JUDGE kkj APPENDIX OF OP(C) 1473/2017 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF PLAINT DATED 11.4.2013 IN O.S NO. 323/2013 ON THE FILE OF THE MUNSIFF'S COURT, WADAKKANCHERY.

EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT AND COUNTER CLAIM DATED 12.7.2013 FILED BY THE 1ST DEFENDANT IN O.S NO. 323/2013 ON THE FILE OF THE MUNSIFF'S COURT, WADAKKANCHERRY.

EXHIBIT P3 TRUE COPY OF THE COMMISSIONER'S REPORT AND SKETCH APPENDED TO THE REPORT AND DATED 2.8.2015 IN I.A NO. 3547/2014 IN O.S NO. 323/2013 ON THE FILE OF THE MUSNIFF'S COUR