IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 WP(C).No. 24167 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 1145/2010 IN OS.14/2007 of MUNSIFF COURT, TIRUR .................... PETITIONER: --------------- ABDUL SAMAD, S/O. MUHAMMED ALI PAZHAYA PUTHENVEETTIL, THRIKKANDIYOO AMSOM MUTHOOR DESOM, TIRUR TALUK, MALAPPURAM DIST. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENTS: --------------- 1. ISMAIL.C.P., S/O. RAYIN, 2. ABDUL RASHEED, ISMAIL.C.P. S/O. RAYIN, 3. RAMLA, D/O. RAYIN, 4. THAHIRA, D/O. RAYIN, 5. JAMEELA, D/O. RAYIN, 6. SAINABA, D/O. RAYIN, 7. KHADEEJA, D/O. RAYIN, 8. KUNJHEEMA, D/O. RAYIN, RESPONDENTS 1 TO 8 RESIDING AT CHETTIYAM PARAMBIL HOUSE, PACHATTIRI POST, TIRUR TALUK, MALAPPURAM DISTRICT-676101 9. USMAN KUTTY, S/O MUHAMMED ALI, PAZHAYA PUTHANVEETTIL, THRIKKANDIYOO AMSOM MUTHOOR DESOM, TIRUR TALUK, MALAPPURAM DIST-676101 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.24167 of 2010 --------------------------------------- Dated this 03rd day of August, 2010 JUDGMENT This writ petitioner is plaintiff in O.S.No.14 of 2007 of the court of learned Munsiff, Tirur challenging Ext.P4, order on I.A.No.1145 of 2010 to remit report and sketch prepared by the Advocate Commissioner for further identification of the disputed way with reference to the measurement of adjoining properties. According to the petitioner, himself and other members of the locality have got a customary easement over the disputed way which according to the petitioner goes along the northern side of the suit property and property of respondent Nos.1 to 8. It is also his case that the said pathway then goes towards east and ultimately leads to the Tirur Paravanna Main road. Respondent Nos.1 to 8 denied existence of the pathway but referred to the existence of a water chal for draining excess water from the adjoining property. On the request of petitioner, Adv. M Vijayakumar inspected the property and submitted report and sketch. Commissioner has shown property belonging to the petitioner, property of respondent Nos.1 to 8 and properties of one Damodaran and Jayarajan. There is also reference to the W.P.C.No.24167 of 2010 : 2 : disputed way running along the northern side of suit property and property of respondent Nos.1 to 8. On the request of petitioner that report and sketch were remitted to the Advocate Commissioner. But a few months later petitioner represented that the Advocate Commissioner has gone abroad and accordingly Adv. E.M.Purushothaman was appointed as Commissioner. That Commissioner inspected the properties on 15-12-2009 and submitted Ext.P3, report and sketch. In that report Commissioner has stated that the disputed way is almost in an abandoned stage and that there is no way or indication of way towards east as claimed by petitioner. It is thereafter that petitioner filed I.A.No.1145 of 2010 again to remit Ext.P3, report and sketch for proper identification of disputed way after measurement of properties. That application was dismissed by the learned Munsiff stating that request is unwarranted. Learned Munsiff also made certain observations regarding merit of the case. It is contended that Ext.P4, order is not correct and that there is material on record to show that disputed way is in existence from time is immemorial. Learned counsel has placed reliance on a copy of decree in O.S.No.169 of 1927 where according to learned counsel there is reference to the disputed W.P.C.No.24167 of 2010 : 3 : way. 2. It is pertinent to note that there is no mention in the plaint anywhere as to the width and length of the disputed way. Admittedly, no document evidencing length and width of the disputed way has been produced by the petitioner either in the court below or to the Advocate Commissioner for inspection. Advocate Commissioner, Sri.E.M.Purushothaman has stated that no such document except a copy of the decree in O.S.No.169 of 1927 was brought to his notice. He also stated that there appeared to be some discrepancy in the property referred to the decree in O.S.No.169 of 1927. 3. It is to be noted that as I stated there is no document evidencing width or length of the disputed way. Obviously, attempt of petitioner is to measure the properties of respondent Nos.1 to 8 and others and to show that the excess land if any with them forms part of the disputed way. I also bear in mind that Damodaran whose property is sought to be measured is not a party to the suit and his property is also not scheduled in the plaint. It is in the above circumstances that learned Munsiff thought that it is not necessary to remit Ext.P3, report and sketch to the Advocate Commissioner. Having regard to the facts and W.P.C.No.24167 of 2010 : 4 : circumstances of the case and on hearing learned counsel I do not find reason to interfere with the said order but, learned Munsiff shall dispose of the suit untrammeled by any observation made in Ext.P4 as to the merit of the case. With the direction made above writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-