IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 OP(C).No. 650 of 2010(O) ------------------------ OS.290/2009 of PRL.M.C., KOTTAYAM .................... PETITIONER ------------------------------ VASUKUTTAN NAIR, S/O.GOPALA PILLAI, AGED 76 YEARS, KOLATHU VEEDU, MARIYATHURUTHU, AYAMANAM, KOTTAYAM. BY ADV. SRI.K.R.VINOD RESPONDENT: --------------- K.N.MOHANDAS, S/O.NARAYANA PILLAI, AGED 61 YEARS, KOLATHU VEEDU, MARIYATHURUTHU, AYAMANAM, KOTTAYAM 686015.. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.650 of 2010 --------------------------------------- Dated this 12th day of November, 2010 JUDGMENT Defendant in O.S.No.290 of 2009 of the court of learned Munsiff, Kottayam is the petitioner before me challenging Ext.P7, order dated March 30, 2010 refusing to depute an Advocate Commissioner as requested in Ext.P5, application. Respondent filed a suit for prohibitory injunction regarding the user of an alleged pathway through plaint schedule item No.2 belonging to the petitioner claiming that he has right of easement by prescription and necessity to use the said pathway for access to plaint schedule item No.1 belonging to him. Along with the institution of suit there was also an application for commission to inspect the property. Commissioner inspected the property and submitted report regarding lie and condition of plaint schedule items and the disputed way. Commissioner reported about the way but, stated that he was not able to assess its oldness. Petitioner resisted the suit contending that there is no such way. Later, petitioner filed Ext.P5, application for appointment of a commission to note availability of alternative access for respondent and also to ascertain oldness of the disputed way. O.P(C).No.650 of 2010 : 2 : That application was dismissed by the learned Munsiff by the impugned order. Learned counsel submitted that since it was an ex parte commission, petitioner was not able to point out certain relevant aspects to the commission. 2. Two things that petitioner now wants the Commissioner to note vide Ext.P5, application are; existence of alternative access for respondent and the oldness of the way. So far as the first one is concerned, learned Munsiff has observed that there is no plea in the written statement of petitioner that respondent has any other means of access to plaint schedule item No.1. If that be so, question of adducing evidence as regards existence of alternative way in the absence of pleadings does not arise. For, a party cannot be allowed to adduce evidence in support of a matter which is pleaded. 3. So far as the second aspect is concerned, even in the report dated 29-06-2009 Advocate Commissioner has expressed his inability to assess oldness of the way and in his opinion if oldness of the building in plaint schedule item No.1 is taken as the basis for fixing oldness of the way, the way is as old as the building. That is only an opinion expressed by the Advocate Commissioner. In the light of the above, there is no point in O.P(C).No.650 of 2010 : 3 : asking the Advocate Commissioner to assess oldness of the way. Parties can adduce evidence regarding oldness of the disputed pathway. I do not find reason to interfere with the impugned order. 4. Learned counsel submits that petitioner is taking steps to get written statement amended to incorporate a plea regarding availability of alternative access to the respondent and to move fresh application for issue of a commission to report on such alternative access. According to learned counsel, Ext.P7, order shall not stand in the way of petitioner filing a fresh application in case the written statement is allowed to the amended. I leave that matter to be decided by the trial court having regard to the facts and circumstances. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-