IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 OP(C).No. 3834 of 2011(O) ------------------------- AGAINST THE ORDER DATED 21/10/2011 IN ORDER IN OS.131/2010 of PRL.MUNSIFF, KASARAGOD .................... PETITIONER ---------------- C.M.ABDULLA KUNHI, S/O.C.A.MOIDEENKUNHI, CONTRACTOR BY PROFESSION, RESIDING AT CHEROOR, CHENGALA VILLAGE, CHEROOR POST, KASARAGOD TALUK AND DISTRICT. BY ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN RESPONDENT(S): -------------------- 1. NABEESA, W/O.LATE ARANTHODU UMMER, RESIDING AT CHEROOR, CHENGALA VILLAGE, CHEROOR POST, KASARAGOD TALUK AND DISTRICT. PIN-671 123. 2. C.U.ABDULLA KUNHI, S/O.DO IN DO. DO. DO. 3. C.A.HASSAINAR, S/O.CHERIYAVEEDU ABDULLA, BUSINESS, IN DO. DO. DO. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk OP(C).No. 3834 of 2011(O) ----------------------------------- APPENDIX ------------- PETITIONER(S) EXHIBITS ---------------------------- EXT.P1- DATED 29-3-2010, TRUE COPY OF THE PLAINT IN O.S.NO.131 OF 2010 MUNSIFF'S COURT, KASARAGOD. EXT.P2- DATED 28-10-1992, TRUE COPY OF THE SALE DEED PRODUCED ALONG WITH THE PLAINT IN O.S.131/10. EXT.P3- DATED 17-5-2010, TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1 AND 2 IN O.S.NO.131 OF 2010. EXT.P4- DATED 17-6-2011, TRUE COPY OF THE FINAL REPORT, PLAN AND INDEX FILED BY THE ADVOCATE COMMISSIONER. EXT.P5- DATED 26-6-2011, TRUE COPY OF I.A.NO.1182 OF 2011 IN O.S.NO.131 OF 2010 FILED BY THE PETITIONER. EXT.P6- DATED 7-7-2011, TRUE COPY OF THE OBJECTION TO I.A.NO. 1182 OF 2011 IN O.S.NO.131 OF 2010 FILED BY THE RESPONDENTS 1 AND 2 EXT.P7- DATED 21-10-2011, TRUE COPY OF THE ORDER IN I.A.NO.1182 OF 2011 IN O.S.NO.131 OF 2010, PRL.MUNSIFF'S COURT, KASARAGOD. RESPONDENTS' EXHIBITS : NIL ------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3834 of 2011 -------------------------------------- Dated this the 24th day of November, 2011. JUDGMENT Petitioner is the plaintiff in O.S.No.131 of 2010 of the court of learned Principal Munsiff, Kasaragod. He prayed for a decree for prohibitory injunction to restrain the respondents from interfering with the pathway which according to him originated from the Chengala-Cheroor road and reached plaint A schedule passing through R.S. No.181/1, plaint B schedule, etc. The Advocate Commissioner inspected the property and submitted Ext.P4, report and plan after measurement of the properties. According to the Advocate Commissioner, the way is not through plaint B schedule (survey No.83/10C) but, along its eastern side. The way is accordingly marked in Ext.P4 also. Petitioner, not satisfied with Ext.P4, report and plan wanted the same to be remitted to the Advocate Commissioner for clarification and correction of the mistake. That application was dismissed by the learned Munsiff against which this Original Petition is filed. 2. It is contended by the learned counsel that the way is through plaint B schedule even as per Ext.P2, document on which petitioner is relying. It is also pointed out that in Ext.P4, report it is stated as item (iv) that during the first visit the Advocate Commissioner noticed that there were steps on the pathway but he had not seen the steps at the time of his subsequent visits. OIP(C)No.3834/2011 2 3. The claim in the suit is easement by way of prescription. Though petitioner claimed that the pathway passes through plaint B schedule, the Advocate Commissioner after measurement of the properties reported that the pathway (marked as 'P' in the plan and referred to as 'P1' in the report) is on the east of plaint B schedule comprised in survey No.83/10C. Learned Munsiff noted that the way referred to in the report as 'P1” and in the plan as 'P' is one and the same. Learned Munsiff also relied on the relevant documents to say that even as per the said documents pathway is on the east of property comprised in survey 83/10. 4. In the nature of the dispute involved I am not inclined to think that a remission of Ext.P4, report and plan is required. As such no interference is required. Original Petition is closed. THOMAS P.JOSEPH, Judge. cks