IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 26526 of 2010(O) -------------------------- IA NO.620/2010 IN OS.75/2009 of MUNSIFF COURT,KATTAPPANA .................... PETITIONER(S): --------------- N.KULANTHAVEL, AGED 56 YEARS, S/O.NARAYANAN, NEDUVILAYIL HOUSE, AMAYAR, VANDENMEDU. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT(S): --------------- 1. S.SURESH KUMAR, S/O.SIVARAJ, SIVA BHAVAN, AMAYAR P.O., VANDENMEDU, IDUKKI (DT), 685602. 2. VANARAJ, S/O.DWARARAJ, AMAYAR P.O., VANDENMEDU, IDUKKI (DT) , 685602. 3. GOPI, S/O.THANKAPPAN, AYYANKKERI HOUSE, AMAYAR P.O., VANDENMEDU, IDUKKI (DT) , 685602. 4. ANIL, S/O.KUNJUMON, AMAYAR P.O., VANDENMEDU, IDUKKI (DT) , 685602. 5. THOMAS @ KUNJUMON, S/O.CHERIAN, PARAYIL HOUSE, AMAYAR P.O., VANDENMEDU, IDUKKI (DT) , 685602. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.26526/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS 75/2009 OF THE MUNSIFF COURT, KATTAPPANA EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS 75/2009 OF MUNSIFF COURT, KATTAPPANA EXT.P3 TRUE COPY OF ORDER DATED 3.7.2010 IN IA NO.620/2010 IN OS 75/2009 OF MUNSIFF COURT, KATTAPPANA //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.26526 of 2010 -------------------------------------- Dated this the 27th day of September, 2010. JUDGMENT Plaintiff in O.S.No.75 of 2009 of the court of learned Munsiff, Kattappana is the petitioner before me. He challenges Ext.P3, order refusing to appoint a survey commission to identify plaint schedule properties. 2. According to the petitioner he owns 58 cents of land (described in the plaint as A to C schedules) and along the northern side of plaint A schedule there was a pathway having width of three feet which was being used by petitioner and others. It is the further case of petitioner that respondents/defendants trespassed into his property and increased width of the way to five feet using portion of his property. Respondents contended that the pathway was having a width of five feet even earlier. Petitioner filed I.A. No.620 of 2010 to appoint an Advocate Commissioner to measure plaint A to C schedule properties. Learned Munsiff has dismissed the application observing that in the nature of suit it is not necessary to appoint a survey commission. That order is under challenge. It is contended by learned counsel that measurement of properties belonging to petitioner would show whether there is any trespass into the properties as claimed by petitioner. WP(C) No.26526/2010 2 3. I have gone through the averments in the plaint. It is not as if case of petitioner is that disputed way was through plaint A to C schedules belonging to him. His case is that the disputed way was having width of three feet and was lying on the northern side of plaint A schedule through which he also having access to plaint A to C schedule properties. Plaint D schedule is the disputed way. According to the petitioner plaint E to G schedules are the portions of A to C schedules trespassed upon by respondents for widening the pathway. 4. In so far as petitioner has no case that the disputed way formed part of his property and it is his case that portions (plaint E to G schedules) of his property has been trespassed for widening the disputed way, measurement of properties belonging to petitioner is relevant to show whether there is any deficit in extent which may indicate whether any portion of property of petitioner has been used for widening the way. In that view of the matter, I am inclined to allow this petition. Resultantly this Writ Petition is allowed. Ext.P3, order is set aside. I.A.No.620 of 2010 is allowed. If respondents desire to ascertain any fact which is necessary for proper adjudication of the dispute it is open to them to file work memo in the court of learned Munsiff and if any such work memo is filed learned Munsiff shall consider that work memo and pass appropriate orders. WP(C) No.26526/2010 3 Batta payable to the Advocate Commissioner and Surveyor shall be fixed by the learned Munsiff taking into account extent of work to be done and other relevant matters. THOMAS P.JOSEPH, Judge. cks