IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 34573 of 2008(N) -------------------------- AGAINST THE ORDER IN IA 7223/08 IN OS.810/2005 of I ADDL. MUNSIFF'S COURT.,THRISSUR .................... PETITIONER(S): --------------- VARGHESE, S/O. PLACHUVATTIL MANI, KOOTTALA DESOM,PANANCHERY VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): --------------- 1. MUTTAMPURATH ABRAHAM @ POZHAKUNDIL ANIYAN, KOOTTALA DESOM, PANACHYERY VILLAGE, THRISSUR TALUK. 2. JOY, S/O. OLAMANAKUZHIYIL VARKEY, KOOTTALA DESOM, PANACHYERY VILLAGE, THRISSUR TALUK. 3. SUNNY, S/O. OLAMANAKUZHIYIL VARKEY, KOOTTALA DESOM, PANACHYERY VILLAGE, THRISSUR TALUK. 4. ANTO AUGUSTINE, S/O. THOTTUGNAL AUGUSTY, MUDIKKODE DESOM, PANANCHERY VILLAGE, THRISSUR TALUK. ADV. SRI.DILIP J. AKKARA FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 34573/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF PLAINT IN OS NO.810/05 BEFORE THE 1ST ADDITIONAL MUNSIFF'S COURT, THRISSUR. EXT.P2: COPY OF WRITTEN STATEMENT IN OS NO.810/05 BEFORE THE MUNSIFF'S COURT, THRISSUR. EXT.P3: COPY OF REPLICATION IN OS NO.810/05. EXT.P4: COPY OF REPORT FILED BY THE ADVOCATE COMMISSIONER IN OS NO.810/05. EXT.P5: COPY OF THE APPLICATION IN IA NO.7223/08 IN OS NO.810/05. EXT.P6: COPY OF THE COUNTER IN IA NO.7223/08 IN OS NO.810/05. EXT.P7: COPY OF THE ORDER IN IA NO.7223/08 IN OS NO.810/05 OF 1ST ADDITONAL MUNSIFF'S COURT, THRISSUR. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.34573 of 2008 --------------------------------------------- Dated this the 13th day of February, 2009 JUDGMENT The petitioner who is the plaintiff in O.S.No.810/05 on the file of the I Additional Munsiff’s Court, Thrissur challenges Ext.P7 order dated 10th November 2008 in I.A.No.7223/08 by which the court below appointed a Commissioner for local inspection of the plaint schedule property and the written statement schedule property. The suit was filed for permanent prohibitory injunction. The defendants contended that they have got easement right over the written statement schedule property. In the Written statement, they also preferred a counter claim. It would appear that a Commissioner was appointed earlier and he had filed a report. The respondents filed Ext.P5 application dated 4.8.2008 to appoint a Commissioner to note down the several points as detailed in the application. The court below held in the order impugned that there is no need to depute a Taluk Surveyor and any private surveyor can assist the Commissioner in executing the work. It was also held that the fourth point required to be noted in the application is beyond the scope of Commission. The Commissioner was directed to plot the plaint schedule property WPC No.34573/2008 2 as per lie and the present boundaries. 2. The main objection raised by the petitioner is regarding point No.2 directed to be noted by the Commissioner. The learned counsel for the petitioner would submit that since the respondents are claiming easement right, they are barred from claiming title over any portion of the plaint schedule property. According to the counsel, the various questions mentioned in the application for issue of Commission would indicate that the respondents are claiming title or at least they are disputing the title of the plaintiff in respect of a portion of the plaint schedule property. The counsel points out that the court below has not considered the objections and has not formulated the points which alone should be noted by the Commissioner at the time of inspection. 3. There cannot be any grievance in the matter of appointment of Commissioner for inspecting the property to note down the details pertaining to the contentions in the plaint and in the written statement and counter claim, for a complete and effective adjudication of the disputes involved in the case. Therefore, I am not inclined to interfere with the order passed by the court below in appointing the Commissioner. The objection WPC No.34573/2008 3 of the petitioner is that certain points indicated in Ext.P5 are beyond the scope of the suit and counter claim and some of them would amount to contradictory and inconsistent pleas. These contentions were not properly adverted to and considered by the court below. Therefore, the court below shall consider the matter afresh and specify the particular points to be noted by the Commissioner from among the points mentioned in Ext.P5. The court may also include additional points which may be pointed out by the parties in the course of arguments. The court below shall bear in mind that the Commissioner need inspect the property with reference to the disputes involved in the case and the points which could be legally raised by the parties. 4. It is made clear that I have not expressed any opinion on the merits of the contentions raised by the petitioner as to the availability or otherwise of the points for consideration in Ext.P5 Commission application. The Writ Petition is disposed of accordingly. K.T.SANKARAN, JUDGE csl