JUDGMENT

The original petition is filed to set aside the order in IA No.1/2022 in O.S No.137/2013 of the Court of the Principal Munsiff, Kochi.

2. The petitioner is the plaintiff in the above suit filed against the respondent, seeking a decree for fixation of boundary and consequential injunction. An Advocate Commissioner was appointed in the suit, who had conducted the survey of the property with the assistance of a surveyor. Exhibit C1 and C1(a) reports were filed before the court below. The suit was decreed as per Exhibit P2. Challenging Exhibit P2, the respondent had filed AS No.66/2016 before the court of the Subordinate Judge, Kochi. The Appellate Court, by its judgment dated 31.07.2018, allowed the appeal by way of remand. The Appellate Court observed as follows:-

5. It is contended by the defendant that the plaintiff is not entitled for decree of fixation of boundary since the property of the defendant is not scheduled. But in this case the properties of the plaintiff and the defendant are adjoining properties. The two properties are in contact with each other. The case of the defendant is that all the four sides of the property there are demarcated boundaries. On the contrary according to the plaintiff, on the northern side of the property there is no specific boundary. But the defendant failed to prove that on the alleged northern side there is boundary. Ext. C1 is the commission report. It is seen that the advocate commissioner who prepared Ext. C1 and surveyor who conducted survey were not examined before the court below. It is stated in the report that the property has been surveyed in accordance with Ext.A1 which is the title deed of the plaintiff. As per Ext.A1, the northern boundary of the property mentioned in Ext.A1 is the property comprised in Sy. No.1055. Further it can be seen that the property mentioned in Ext.A1 starts from the north eastern corner of the property comprised in Sy No.1057/2. But survey has been started not from the north- eastern corner of the property in Survey No.1057/2 but from its middle portion. So prima facie it can be seen that the survey has been conducted not in accordance with Ext.A1. So the only conclusion which can be arrived is that the property shown as the property in Ext.C1(a) is not the similar property which is mentioned in Ext.A1. The lower court failed to note this mistake which has been crept in the survey sketch. How the mistake happened is to be explained by its advocate commissioner and surveyor. At present it is to be held that the plaintiff is not entitled for the decree on the basis of Ext.C1 and C1(a). So I am of the view that the plaintiff is to be given an opportunity to prove that aspect by examining the commissioner and the surveyor. Since this survey sketch cannot be taken into account the finding as to the sewage canal also is not sustainable.

6. From the above discussion, I find that as per power under Order 41 Rule 23A. the case is to be remanded for the above said purpose.

7. Point No.7 : In the result, the appeal is allowed by setting aside the judgment and decree of the lower court. The case is remanded back to the trial court for the disposal of the case after considering the above said facts mentioned. No cost is ordered.

8. Since the case is in the year 2013, the trial court is directed to dispose the case as early as possible by giving preference.

3. Consequent to the remand, the petitioner filed Ext. P3 objection to the commission report and also filed Ext.P4 application seeking remission of the commission report. The respondent is not contesting the proceeding.

However,the court below has, by the impugned Ext.P5 order, dismissed Ext.P4 application. Ext.P5 is erroneous.

Hence, the original petition.

4. Heard; Sri.S. Sunil Kumar, the learned the counsel appearing for the petitioner, on admission.

5. On a consideration of the materials on record, especially, the observations made by the Appellate Court in A.S. No.66/2016, it can be gathered that the Appel