IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).No. 25008 of 2010(O) -------------------------- OS.195/2007 of MUNSIFF COURT, TIRUR .................... PETITIONER: --------------- MOIDEENKUTTY, S/O.MOIDUTTY, CHENGANAKATTIL, ATHAVANAD AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENTS: --------------- 1. ABOOBACKER, S/O.MUHAMMED HAJI, CHENGANAKATTIL, ATHAVANAD AMSOM DESOM, TIRUR TALUK, MALAPPURPAM DISTRICT, PIN-676 310. 2. BASHEER, S/O.MUHAMMED HAJI, CHENGANAKATTIL, ATHAVANAD AMSOM DESOM, TIRUR TALUK, MALAPPURPAM DISTRICT, PIN-676 310. 3. UMMER, S/O.MUHAMMED HAJI, CHENGANAKATTIL, ATHAVANAD AMSOM DESOM, TIRUR TALUK, MALAPPURPAM DISTRICT, PIN-676 310. 4. USMAN, S/O.MUHAMMED HAJI, CHENGANAKATTIL, ATHAVANAD AMSOM DESOM, TIRUR TALUK, MALAPPURPAM DISTRICT, PIN-676 310. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.25008 of 2010 --------------------------------------- Dated this 11th day of August, 2010 JUDGMENT Plaintiff in O.S.No.195 of 2007 of the court of learned Munsiff, Tirur challenges Ext.P8, order refusing to remit Exts.P6 and P6(a), report and plan to the Advocate Commissioner. He filed the suit for prohibitory injunction to restrain respondents from trespassing into the suit property or widening the way on eastern side which according to him has a width of 3 to 4 feet. Respondents claimed that it is a motorable way being used by them and others. There was an exparte Commissioner who inspected the property and submitted Exts.P3 and P3(a), report and sketch. Since both sides were dissatisfied with that report and sketch they filed Exts.P4 and P5, applications to remit the same. Those applications were allowed and accordingly Commissioner with the assistance of Surveyor inspected property and submitted Exts.P6 and P6(a), report and plan. Petitioner was not satisfied with Exts.P6 and P6(a), report and plan and filed Ext.P7, application to remit the report and plan to the Commissioner. That application was dismissed by Ext.P8, order. Learned Senior Advocate contends that dispute is regarding W.P.C.No.25008 of 2010 : 2 : width of the pathway on the east of suit property and none of the Commissioners have identified the same. This is crucial to the decision of the case and hence Exts.P6 and P6(a) are required to be remitted to the Commissioner to identify width of the disputed way. Learned Senior Advocate has referred me to Exts.P3, P3(a), P6, P6(a) and P8, orders. 2. In Ext.P3, Commissioner has reported that he could not find any specific boundary demarcating suit property and disputed way except some laterite stones planted at some points. But on other portions of the disputed way where it abutted the property of others Commissioner has assessed the width and stated it in Ext.P3. In Ext.P6, Commissioner stated that measurement of suit property given in the recent documents of title of petitioner did not tally with its prior document of title. Property was measured with reference to the revenue records and Commissioner has shown the survey boundary of suit property in Ext.P6(a). Commissioner has reported that there was nothing to demarcate suit property and the disputed way on the east. Commissioner has shown width of disputed pathway (as I find from Ext.P6(a)) at 3 points, at point 'Q' it is 2 meters, at point 'I' it is 1.8 meters and at point 'C' it is 1.20 meters. It is also W.P.C.No.25008 of 2010 : 3 : stated that on the further east it is compound wall (forming eastern boundary of the way). It is relevant to look into Ext.P7, application and refer to the matters required to be ascertained. What is requested in Ext.P7, application is the width of way between 'QI' line and eastern compound wall (shown in Ext.P6 (a)), Commissioner has to report whether the said way is motorable and report on the stones paved on 'QI' line. Learned Munsiff has observed that whether disputed way is motorable or not is concerned, width at three points is given by Advocate Commissioner in Ext.P6(a) and whether that portion of the disputed way is motorable is a matter of evidence. So far as ascertainment of the width of way and regarding the question whether there is stones paved on QI line is concerned, Commissioner has reported that there was no specific boundary demarcating suit property and disputed way. It is in the above circumstance that request to remit Ext.P7, application was dismissed. 3. This court in Sarojini Vs. Karthiyani Amma (2010 (1) KLT S.N. 17 (C.No.19)) has held that interference with the report of Advocate Commissioner and order passed thereon under Article 227 of the Constitution is warranted only when W.P.C.No.25008 of 2010 : 4 : there is some infirmity which if not corrected, will result in grave injustice. I do not find any reason to interfere with the impugned order. I make it clear that it is open to the petitioner to urge before the trial court at the time of evidence whatever inadequacy, if any the report has and if necessary, to challenge correctness of Exts.P6 and P6(a) in appeal in case, such a contingency arose. With the above observation writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-