IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 OP(C).No. 491 of 2010(O) ------------------------ IA NO.1057/2010 IN OS.78/2009 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER ------------------------------ THAI VALAPPIL NARAYANAN,AGED 65 YEARS, S/O.PAYYANUKARAN KUNHAMBU,RESIDING AT KIZHAKKE KOVVAL,VELLUR AMSOM,KANDOTH DESOM,P.O.KANDOTH, PAYYANNUR(VIA),KANNUR DISTRICT. BY ADV. SRI.V.C.JAMES SRI.GEORGE MECHERIL RESPONDENT(S): --------------- KULANGARA SHANTHA,AGED 46 YEARS, W/O.RAGHAVAN,RESIDING AT KIZHAKKE KOVVAL, VELLUR AMSOM,KANDOTH DESOM,P.O.KANDOTH, PAYYANNUR(VIA),KANNUR DISTRICT - 679011. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.491 of 2010 -------------------------------------- Dated this the 29th day of October, 2010. JUDGMENT Plaintiff in O.S.No.78 of 2009 of the court of learned Munsiff, Payyannur challenges Ext.P7, order refusing to appoint a survey commission to identify the suit property. Suit is for prohibitory injunction to restrain respondent from demolishing boundaries, trespassing into or constructing road in the suit property. Respondent contended that she has a prescriptive right of easement through the way in the suit property and ofcourse, she also disputed identity of the property. In the light of dispute regarding identity of the suit property petitioner filed I.A.No.1057 of 2010 to appoint a survey commission to identify the property. That application was dismissed by the learned Munsiff observing that no issue regarding identity of property is framed, dispute is regarding right of easement by prescription and hence a survey commission is not necessary. Learned counsel for petitioner contends that identification of suit property is necessary to protect the interest of petitioner. Since the dispute regarding identity of suit property is raised by respondent it was necessary to get the property identified by a survey commission. 2. I am unable to agree with that argument of learned counsel. It is seen that the suit is merely for a decree for prohibitory injunction against respondent demolishing boundaries, trespassing into it or constructing a new road along the suit property. Court fee for the said purpose is paid under Section 27(c) of the Court Fees and Suits Valuation Act. In a suit for injunction except OP(C) No.491/2010 2 for the purpose of proving possession if absolutely necessary, issue regarding title is irrelevant. Hence it is not necessary in a suit for injunction of this nature to raise an issue regarding title. Advocate Commissioner has inspected the property and submitted reports. It is true that property of respondent is situated on the west of the suit property. But, there again there is no dispute regarding the boundary in between. Advocate Commissioner has reported about a way through the suit property. It is in the above circumstances that the learned Munsiff has observed that no question of survey commission is involved and what is required to be proved is only whether respondent has right of access through the suit property. May be, being a suit for injunction petitioner has to provide that property is situated within defined boundaries. But here there is no dispute regarding boundaries. On the facts of the case a survey commission is not required. There is no reason to interfere with the impugned order. 2. So far as the reports submitted by Advocate Commissioner is concerned, it is only a piece of evidence and it is within the power of petitioner to adduce appropriate evidence as regards his contention whatever the reports of Advocate Commissioner may say. Petition is closed with the above observation. THOMAS P.JOSEPH, Judge. cks