IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 25530 of 2010(O) -------------------------- OS.2590/2008 of II ADDL.M.C.,THRISSUR .................... PETITIONER: --------------- APPU, AGED 68, S/O.ITTAMAL, PONNEAMBARA, PUZHAKAL VILLAGE, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT: --------------- BABURAJ, S/O.KUTTAPU, PANDIRIKAL, PUZHAKAL VILLAGE, THRISSUR TALUK, 680 553. ADV. SRI.MILLU DANDAPANI FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.25530 of 2010 --------------------------------------- Dated this 19th day of October, 2010 JUDGMENT Defendant No.2 in O.S.No.2590 of 2008 of the court of learned Additional Munsiff-II, Thrissur is the petitioner before me, challenging Ext.P4, order refusing to set aside the report and sketch (Exts.P2 and P2(a)) prepared by the Advocate Commissioner. Respondent/plaintiff sued petitioner and another for a declaration of right of easement by way of necessity over plaint B schedule claiming that plaint B schedule is the only access to plaint A schedule belonging to the respondent and for a decree for mandatory injunction to direct petitioner and defendant No.1 to remove the obstruction caused by them. The Advocate Commissioner inspected property and submitted report and sketch (Exts.P2 and P2(a)). Petitioner preferred objection claiming that there is no such way as described in plaint B schedule or, as reported by the Advocate Commissioner and that the Advocate Commissioner has not noted existence of an alternative way available to the respondent for access to plaint A schedule. It is contended by learned counsel for petitioner that Advocate Commissioner has not reported existence of the buildings in plaint W.P(C).No. 25530 of 2010 : 2 : B schedule and that the intervening wall of the temple compound was taken as the outer wall of temple compound. The request sought by petitioner to set aside the report and sketch was opposed by the respondent. Learned Munsiff passed Ext.P4, order refusing to set aside the report and sketch observing that petitioner failed to prove that the facts reported by the Advocate Commissioner are totally false, if at all there was any shortcoming in the report, petitioner could have requested the Court either to remit the report and sketch or to direct the Commissioner to once again inspect the property for reporting additional facts. That order is under challenge. Learned counsel for petitioner argued that according to the respondent, plaint B schedule is puramboke land and that there are buildings in the said property. It is the further contention of learned counsel that existence of alternative way for access to plaint A schedule was not reported by the Advocate Commissioner. Learned Senior Advocate appearing for respondent/plaintiff contended that opportunities available to the petitioner to get additional facts if any, noted by the Advocate Commissioner were not availed and that I.A.No.10286 of 2008 filed by petitioner for review of the order on I.A.No.8426 of 2008 was dismissed for the reason that petitioner did not take necessary steps on time. W.P(C).No. 25530 of 2010 : 3 : 2. Claim of respondent is a right of easement by way of necessity along plaint B schedule. Certainly, question whether respondent has any other means of access to plaint A schedule which he can use as of right is relevant for consideration. It is true that in Ext.P2, report the Advocate Commissioner has reported that plaint B schedule is the only access to the plaint A schedule but, that of course is controverted by the petitioner who asserts that there is alternative access to the plaint A schedule. Advocate Commissioner has not reported whether plaint B schedule is puramboke as claimed by the respondent. It is in these circumstances learned Munsiff observed that the proper course open to the petitioner was not to seek to set aside Exts.P2 and P2 (a) but to request the court to remit the report or, appoint an Advocate Commissioner to report on matters additionally required by petitioner. I must bear in mind that it is not as if learned Munsiff foreclosed right of petitioner to get additional facts pleaded by petitioner to be ascertained. The request to set aside the report and sketch was disallowed. Having heard learned counsel for petitioner and learned Senior Advocate appearing for respondent and gone through the order under challenge, I do not find reason to interfere with the order refusing to set aside Exts.P2 and P2(a). W.P(C).No. 25530 of 2010 : 4 : 3. Then the question is whether petitioner should be permitted to get additional facts as claimed by him noted by the Advocate Commissioner. Petitioner has a contention that there are several structures in plaint B schedule and that respondent has alternative access to the plaint A schedule. Respondent has a contention that plaint B schedule is puramboke land. These aspects can be ascertained by remitting the report and sketch so that the Commissioner could ascertain whether any portion of plaint B schedule is puramboke land with the help of a qualified Surveyor. Petitioner can also get it ascertained through the Commissioner whether there are structures in plaint B schedule and whether respondent has alternative access to the plaint A schedule, of course at the cost of petitioner. Learned Senior Advocate appearing for respondent has stated that even plaint B schedule as reported by the Advocate Commissioner has been blocked by the petitioner and respondent is left with no access to the plaint A schedule. It is submitted that an application for temporary/mandatory injunction filed by the respondent is pending in the trial court and coming up for hearing on 30-10-2010. That application was not taken up so far on account of pendancy of this petition in this court. I make it clear that it is open to the respondent to request learned Munsiff to take up that application W.P(C).No. 25530 of 2010 : 5 : for temporary/mandatory injunction for consideration without waiting for the additional report and plan if such a course is possible. Resultantly this petition is allowed in the following lines: (i) While holding that there is no reason to interfere with the order of learned Munsiff refusing to set aside Exts.P2 and P2(a). Learned Munsiff is directed to remit the report and sketch to the Advocate Commissioner to ascertain the following matters:- (a) Whether, any portion of plaint B schedule takes in puramboke land? (b) Whether there are structures in plaint B schedule, if so details and location? (c) Whether there is any alternative way to the respondent for access to plaint A schedule and if so, its details? (ii) Learned Munsiff may appoint a qualified surveyor to assist the Advocate Commissioner in ascertaining whether plaint B schedule takes in puramboke land. (iv) The batta payable to the Advocate Commissioner and Surveyor shall be paid by petitioner as ordered by the learned Munsiff within three weeks from this day. W.P(C).No. 25530 of 2010 : 6 : (v) Learned Munsiff shall direct the Advocate Commissioner and Surveyor to carry out the work and submit report and plan at the earliest so that there is no further delay in the matter. (vi) In case petitioner fails to remit Commissioner's batta as ordered by the learned Munsiff, this writ petition will stand dismissed. (vii) Parties will be at liberty to prefer their objection to the report and plan and adduce evidence in respect of their respective contentions in the suit in the course of trial. (THOMAS P JOSEPH, JUDGE) Sbna/-