2025:KER:24107 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 20TH DAY OF MARCH 2025 / 29TH PHALGUNA, 1946 OP(C) NO. 2106 OF 2022 AGAINST THE ORDER DATED 23.09.2022 IN OS NO.382 OF 2016 OF MUNSIFF COURT, OTTAPPALAM PETITIONER: ABOOBACKAR SIDDIQUE AGED 59 YEARS, S/O ALLIKKOTTIL MUHAMMED @ KUNJUTTY, CHUNANGAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD., PIN - 679511 BY ADVS. SABU GEORGE P.B.KRISHNAN P.B.SUBRAMANYAN MANU VYASAN PETER RESPONDENTS: 1 ABDUL RAZAK AGED 59 YEARS, S/O SAITHALAVI, ANAPPALLIYALIL, CHUNANGAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD., PIN - 679511 2 ABOOBACKAR AGED 55 YEARS, KOORIYIL, POOLAKKUNDIL, ARIYOOR THEKKUMURI DESOM, OTTAPPALAM AMSOM, OTTAPPALAM TALUK, PALAKKAD., PIN - 678583 3 RAYIN AGED 52 YEARS, S/O NALAKATH FAKRUDDEEN, MURUKKAMPATTAYIL, CHUNANGAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD., PIN - 679511 OP(C) NO. 2106 OF 2022 2025:KER:24107 2 4 KOORIYIL KASIM AGED 52 YEARS, KOORIYIL, POOLAKKUNDIL, ARIYOOR THEKKUMURI DESOM, OTTAPPALAM AMSOM, OTTAPPALAM TALUK, PALAKKAD., PIN - 678583 BY ADVS. T.MADHU ABRAHAM BABU KALLIVAYALIL C.R.SARADAMANI(S-891) SHAHID AZEEZ(K/000630/2015) RENJISH S. MENON(K/001486/2021) RANJAN SURESH(K/891/2014) THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON 20.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 2106 OF 2022 2025:KER:24107 3 K.BABU, J. ------------------------------------------------------- O.P (C) No.2106 of 2022 -------------------------------------------------------- Dated this the 20th day of March, 2025 J UDGMENT The challenge in this Original Petition is to Ext.P8 order dated 23.09.2022 in IA.No.660/2022 in O.S.No.382/2016 on the file of the Munsiff’s Court, Ottapalam, whereby the trial Court remitted the commission report and plan for collecting additional inputs. 2. The defendants are the respondents. The plaintiff is the petitioner. The plaintiff instituted the Original Suit for injunction simpliciter. The defendants resisted the identity of the plaint schedule property. On the application of the plaintiff the Court issued a Commission to identify the property based on the title deed, possession, survey documents etc. The Commissioner filed Ext.P4 report, rough sketch and plan. 3. The plaintiff challenged the contents in the report. The plaintiff pleaded that the Commissioner identified only 2.5 cents whereas the plaint schedule property as per the OP(C) NO. 2106 OF 2022 2025:KER:24107 4 title deed and the relevant documents is 10 cents. The defendants resisted the application contending that the property referred to in the plaint was found situated at a place which is 200 metres away from the residence of the plaintiff. According to the defendants, the plaintiff is in possession of only 2.5 cents of land. The trial Court held that the Commissioner could not properly identify the property as per the title deed, possession and boundaries. 4. What is discernible from the observation of the trial Court in the impugned order is that additional inputs are required to identify the plaint schedule property. The report sketch and plan submitted by the Commissioner have become part of the evidence under Order 26 Rule 10 (2) CPC. The trial Court has not set aside the report, plan and sketch. The trial Court only invoked the provisions of Order 26 Rule 10 (3) CPC, as per which the Court is empowered to conduct further enquiry, if the Court is dissatisfied with the report and plan. 5. The Division Bench of this Court in Laly Joseph @ Laly Sebastian v. K.U. Francis [2023 (2) KLT 516], held thus:- “10. The present dilemma has arisen in the matters OP(C) NO. 2106 OF 2022 2025:KER:24107 5 relating to the appointment of the Commissioner for local investigation. It is true that there is no specific mention about setting aside the report under Order XXVI R.10(3) of the Code, as it only refers to conduct further ‘enquiry’. There is no embargo, according to us, for setting aside a commission report if the Court is totally dissatisfied with the commission report. It is also open for the Court to remit the commission report for further inquiry, so also to appoint a fresh commission without setting aside the earlier commission report. The Court can very well appreciate both reports and decide accordingly at the time of the trial.…………….” 6. Having regard to the nature of the contentions raised by the parties, this Court is of the view that the order impugned is affected with no illegality or irregularity warranting interference of this Court under Article 227 of the Constitution of India. Therefore, the Original Petition stands dismissed. Sd/- K.BABU, NM JUDGE OP(C) NO. 2106 OF 2022 2025:KER:24107 6 APPENDIX OF OP(C) 2106/2022 PETITIONER EXHIBITS EXHIBIT-P1 A TRUE COPY OF THE PLAINT, DATED 01-11-2016, IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM EXHIBIT-P2 A TRUE COPY OF THE WRITTEN STATEMENT, DATED 02- 02-2018, IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM EXHIBIT-P3 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT, DATED 11-11-2021, IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM EXHIBIT-P4 A TRUE COPY OF THE REPORT AND PLAN DATED 14-10- 2020 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM EXHIBIT-P5 A TRUE COPY OF THE ORDER, DATED 06-04-2022, IN I.A NO.2806 OF 2021 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM EXHIBIT-P6 A TRUE COPY OF I.A NO.660 OF 2022 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM EXHIBIT-P7 A TRUE COPY OF THE OBJECTION IN I.A NO.660 OF 2022 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM EXHIBIT-P8 A TRUE COPY OF THE ORDER DATED 23-09-2022 IN I.A NO.660 OF 2022 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM