IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 37610 of 2008(B) -------------------------- OS.861/2007 of PRL.M.C.,ERNAKULAM .................... PETITIONER(S): ------------------------- 1. KALA VEERAMONY D/O.K.L.RAMAJAYAM, 39/3772, 39/3772 A KARIYATH COLONY, VIJAYA RAMA MENON ROAD, RAVIPURAM, ERNAKULAM. 2. R.VEERAMONY S/O. H.RAMAKRISHNA IYER, 39/3772, 39/3772 A KARIYATH COLONY, VIJAYA RAMA MENON ROAD, RAVIPURAM, ERNAKULAM. BY ADVS. MR.V.V.ASOKAN, SMT.S.AMINA. RESPONDENT(S): --------------------------- 1. K.L.RAMAKRISHNAN, S/O. LATE K.LAKSHMANA IYER, DOOR.NO.005, MALIAKKAL SANTHI RESIDENCY, ALAPPAT CROSS ROAD, RAVIPURAM, KOCHI-16. 2. R.VENKETESWARAN, S/O. K.L. RAMAKRISHNAN, DOOR.NO.005 MALIAKKAL SANTHI RESIDENCY, ALAPPAT CROSS ROAD, RAVIPURAM, KOCHI-16. R1 & R2 BY ADVS. MR.KMV.PANDALAI, SMT.HEMALATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37610/2008 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AMENDED PLAINT IN O.S.NO.861 OF 2007 ON THE FILE OF THE MUNSIFF COURT, ERNAKULAM DTD. 11/07/2007. P2: COPY OF THE ORDER OF THE MUNSIFF COURT IN I.A.NO.7420/2007 IN O.S.NO.861/07 DTD. 4/10/2007. P3: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO. 33043/2007 DTD. 5/06/2008. P4: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER IN O.S.NO.861/2007 DTD. 21/08/2008. P5: COPY OF THE APPLICATION I.A.NO.9072/2008 IN I.A.NO.7420/2007 IN O.S.NO.861/2007 ON THE FILE OF THE MUNSIFF COURT, ERNAKULAM DTD. 3/11/2008. P6: COPY OF THE FIRST REPORT FILED BY THE ADVOCATE COMMISSIONER DTD. 24/07/2008. P6(A): COPY OF THE SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A.NO.5560/07 IN O.S.NO.861/07 DTD. 24/07/2008. P7: COPY OF THE ORDER IN I.A.NO.9072/2008 IN I.A.NO.7420/2007 IN O.S.NO.861/2007 ON THE FILE OF THE MUNSIFF COURT, ERNAKULAM DTD. 17/11/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.37610 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 5th June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. To call for the records of the case leading to Ext.P7 and set aside the same by means of an appropriate writ or order in the nature of certiorari. 2. Issue a writ of mandamus or other appropriate writ or order directing the court below to consider Ext.P5 application afresh and allow the said petition as prayed for by the petitioners. 3. Grant such other orders as may be deemed necessary in the facts and circumstances of this case and in the interests of justice. 2. Plaintiffs in O.S.No.861/07 on the file of the Munsiff Court, Ernakulam are the petitioners. In the suit plaintiffs sought for a declaration and decree that they are having a right of prescriptive easement over plaint B schedule property and also an injunction to restrain the defendants from putting up any compound wall in the B schedule property reducing its width or preventing regular vehicular traffic. It appears, under the documents the way claimed is shown as only having 7.5 links, but the case advanced by the plaintiffs is that W.P.C.No.37610/08 - 2 - from time immemorial, as of right, in continuation of the right exercised by their predecessors, they are enjoying the pathway with a width of 2.5 metres, which is described as B schedule in the plaint. The defendants resisted the suit by filing a written statement in which among other contentions, they disputed the description of B schedule pathway and the right of the plaintiffs to claim prescriptive easement over the pathway described. During the pendency of the suit, alleging trespass upon the pathway by the defendants and of reducing a portion thereof into their possession, the plaintiffs sought for an amendment to claim the relief of a decree of mandatory injunction also. Amendment so sought for by the plaintiffs, overruling the objections raised by the defendants, was allowed and incorporated in the plaint. So, in the suit, at present, a decree of mandatory injunction is also sought for by the plaintiffs. A Commissioner had visited the suit property at the time of institution of the suit. Pursuant to the amendment of the suit, the plaintiffs moved for appointment of a commission again in which they sought among others measurement of the property of the defendants also contending that the defendants are actually in possession of more area than the area covered by their document and the excess area was the portion trespassed upon W.P.C.No.37610/08 - 3 - from the pathway. The learned Munsiff dismissed that application against which a Writ Petition was filed before this court as W.P.C.No.33042/07. After hearing both sides, this court set aside the order passed by the court below, directing the appointment of a commission with specific directions how he should execute the commission. Operative portion of that judgment reads thus: “Therefore the order under challenge is set aside and I direct the same Commissioner who has inspected the property to visit the property and find out first whether there is any reduction of the width of the passage and thereafter measure the defendants' property with respect to the measurement shown in the document and submit a plan and report to the Court and I make it very clear that merely because some excess extend is found in the property of the defendant it will not be a conclusive factor to be determined that the other man is having easement right over the entire property. It all depends upon the ingredients and the statutory requirements under the Easement Act and the legal entitlement of the parties to raise such contentions.” A reading of the judgment would show that taking note of the W.P.C.No.37610/08 - 4 - disputed facts involved in the suit requiring adjudication, this court found some merit in the case advanced by the plaintiffs that a measurement of the property of the defendants with reference to their document was essential for a fair disposal of the case on merits. Pursuant to the judgment passed by this court, the Commissioner visited the property and carried out the measurement and filed Ext.P4 report accompanied by a plan. The plan filed by the commissioner is shown to be only a rough sketch. In the report, the commissioner had shown the side measurements of the property of the defendants as seen at the site, and also the other measurements as reflected in their documents. After such a report was filed, the plaintiffs again moved an application for fresh measurement of the property of the defendants with the assistance of a surveyor contending that the actual extent cannot be ascertained from the report submitted by the commissioner. That application was dismissed by the learned Munsiff by Ext.P7 order with an observation that if such an exercise is required, it can be ordered at the appropriate stage. Challenging the propriety and correctness of Ext.P7 order and contending that it is not legal and it amounts to flagrant violation of the direction given by this court in Ext.P3 W.P.C.No.37610/08 - 5 - judgment, the plaintiffs has filed this Writ Petition invoking the supervisory jurisdiction of this court vested under Article 227 of the Constitution for annulling that order and issuing appropriate directions/orders for measuring out the property of the defendants with the assistance of a surveyor to determine the actual extent. 3. I heard the learned counsel on both sides. Though the futility of the exercise in measuring out the property of the defendants for determination of the actual extent in their occupation was sought to be impressed upon me by the learned counsel for the respondents with reference to the reliefs canvassed in the suit by strenuously contending that even if the defendants are found to be having excess area in their possession, that will not in any way indicate that they had trespassed upon any portion of the pathway. The question involved being to what extent of area the plaintiffs could claim a prescriptive right of easement when their own document specifically showing the measurement of the pathway is also highlighted to contend that Ext.P7 order does not call for any interference. Whatever be the merits of the case advanced by the rival side, I find this court has given specific directions in Ext.P3 judgment that measurement of the property of the defendants has to be carried out W.P.C.No.37610/08 - 6 - and that was so ordered accepting the case presented by the plaintiffs that such determination is essential to find out whether they are now in possession of any area over and above what is shown in their documents. Of course, the plaintiffs have advanced a case that if excess area is found, that has to be taken as area taken from the pathway by trespass. Whatever that be, when a specific direction is given by this court that measurement of the defendants' property to determine its extent has to be done, the court below was not justified in holding that if such an exercise is required it will be done at the appropriate stage. In letter and spirit the direction of this court has to be complied with and as I find data supplied by the commissioner is insufficient to determine the property in the possession of the defendants, it is imperative that measurement of that property with the assistance of the surveyor as desired by the plaintiffs has to be done. Learned counsel for the respondents submitted before me that the first defendant is an old man and his son is employed outside the State and unless specific directions are given fixing the date of local inspection by the Commissioner for measurement, it may cause grave injustice and hardship to the defendant. I direct the court below to fix a date for local inspection by the Commissioner for the purpose of W.P.C.No.37610/08 - 7 - measuring the property with the assistance of the surveyor and advance notice thereof should be given to both parties in the suit so that they can present themselves at the time when the measurement is carried out. Ext.P7 order is set aside, directing the learned Munsiff to issue appropriate orders for measuring out the property of the defendants with the assistance of a surveyor in compliance with the directions issued by this court in Ext.P3 judgment. Learned Munsiff shall give top priority to the case and take expeditious steps for the collection of the commission report and also disposal of the suit at an early date. The Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE