IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 OP(C).No. 1466 of 2011(O) -------------------------------------- IA. NO. 626/2011 IN OS.17/2011 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONERS -------------------- 1. INDIRAMMA, AGED 53 YEARS, MANJADIYIL HOUSE, PONAKAM MURI, THEKKEKKARA VILLAGE, MAVELIKKARA TALUK, 690 101. 2. KRISHNA PILLAI, AGED 58 YEARS, MANJADIYIL HOUSE, PONAKAM MURI, THEKKEKARA VILLAGE, MAVELIKARA TALUK, 690 101. 3. SUNIL KUMAR, AGED 37 YEARS, MANJADIYIL HOUSE, PONAKAM MURI, THEKKEKKARA VILLAGE, MAVELIKKARA TALUK-690 101. BY ADV. SRI.K.JAYARAJ RESPONDENT(S): -------------------------- PARUKKUTTY AMMAL, AGED 72 YEARS, VISWABHARANAM HOUSE, PONAKAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK, 690 101. BY ADV. SRI.REJI GEORGE, SMT.MANJU RAJAN. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 1466 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE ORDER IN I.A. NO.529/2011. EXT.P2 COPY OF THE ORDER IN REVIEW PETITION- I.A. NO.626/2011 IN O.S. NO.17/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1466 of 2011 ==================================== Dated this the 02nd day of December, 2011 J U D G M E N T This Original Petition is in challenge of the orders dated 07.03.2011 and 23.03.2011 on I.A. Nos.529 and 626 of 2011 respectively, in O.S. No.17 of 2011 of the court of learned Munsiff, Mavelikkara. 2. Respondent filed the suit for a decree for prohibitory injunction to restrain petitioners from trespassing into and interfering with item No.2 which is described as a pathway used by the respondent for access to item No.1. On the request of respondent, Advocate Commissioner inspected the property and submitted report, according to the petitioners, stating the width of item No.2 as 2 metres. Contending that the said report is not correct and that statement in the report that item No.2 which according to the petitioners is a ridge passing through paddy land and could not have that much width, petitioners filed I.A. No.530 of 2011 to set aside the report, mahazar and sketch. They also filed I.A. No.529 of 2011 to appoint a survey commission to identify item No.2. On I.A. No.529 of 2011 learned Munsiff passed an order on 07.03.2011 observing that no objection is filed by the O.P(C) No.1466 of 2011 -: 2 :- respondent and hence that application is allowed. Learned Munsiff appointed the same Advocate Commissioner who was appointed earlier, to be assisted by a Surveyor. Petitioners filed I.A. No.626 of 2011 for review of order on I.A. No.529 of 2011 and to appoint another Advocate as Commissioner. That application was dismissed by order dated 23.03.2011. It is contend by learned counsel for petitioners that having regard to the various circumstances it was necessary that another Advocate was appointed as Commissioner. 3. Learned counsel for respondent submits that order dated 07.03.2011 on I.A. No.529 of 2011 may be kept in abeyance until learned Munsiff disposed of I.A. No.530 of 2011 to set aside the report. It is contended that it is without disposing of that application and deciding whether the report, mahazar and sketch are to be set aside or even remitted that learned Munsiff has allowed I.A. No.529 of 2011. 4. Respondent has not challenged order dated 07.03.2011 on I.A. No.529 of 2011. As such there is no reason to interfere with the said order in this proceeding. 5. Now the question is only whether the same Advocate or another Advocate should inspect the property. Having regard O.P(C) No.1466 of 2011 -: 3 :- to the contentions raised I consider it appropriate to avoid unnecessary contentions in that regard that another Advocate is appointed as Commissioner. In that view of the matter I am inclined to think that leaned Munsiff ought to have allowed I.A. No.626 of 2011 to that extent. Original Petition is allowed. Order dated 23.03.2011 on I.A. No. 626 of 2011 is set aside. That application will stand allowed. Order appointing the same Advocate as Commissioner (as per order dated 07.03.2011 on I.A. No.529 of 2011) is reviewed. Learned Munsiff is directed to appoint another Advocate as Commissioner to comply with the order dated 07.03.2011 on I.A. No.529 of 2011. THOMAS P. JOSEPH, JUDGE. vsv