IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 OP(C).No. 759 of 2010(O) ------------------------ IA NO.2379/2010 IN OS.292/2009 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONER ------------------------------ C.P.NATARAJAN, S/O.C.K.PARAMESWARA IYER, MARATH THODI, M.K.ROAD, PALASSERY, PARLI, PALAKKAD DISTRICT. BY ADV. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN SMT.P.G.BABITHA RESPONDENT(S): --------------- 1. C.P.KRISHNAN, S/O.C.K.PARAMESWARA IYER, CHANDRASEKHARAPURAM, EDATHARA(P.O.), PALAKKAD TALUK-678 611. 2. GANESH, S/O.C.P.KRISHNAN, CHANDRASEKHARAPURAM, EDATHARA (P.O.), PALAKKAD TALUKM- 678 611. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.759 of 2010 -------------------------------------- Dated this the 22nd day of November, 2010. JUDGMENT Plaintiff in O.S.No.292 of 2009 of the court of learned Additional Munsiff, Palakkad is the petitioner before me challenging Ext.P8, order dated September 28, 2010 dismissing I.A.No.2379 of 2010. That was an application filed by petitioner to remit Ext.P9, report for further inspection for the reason that the Advocate Commissioner has not reported that the alternative way is not usable. 2. Petitioner sued respondents for a decree for prohibitory injunction against causing obstruction to the use of plaint B schedule way which according to him passes through property of respondents. According to the petitioner, parties got right over the respective properties as per a partition deed and even before that partition deed was executed, petitioner and others were using plaint B schedule way for access to the common properties. Petitioner claimed right of easement by prescription and by way of quasi easement over plaint B schedule. Respondents resisted the suit on various grounds including that petitioner has an alternative way on the western side of plaint A and B schedule and which he is using. Advocate Commissioner inspected the property and submitted Ext.P4, report and later, on request of respondents Advocate Commissioner again visited the property and submitted Ext.P9, report which is OP(C) No.759/2010 2 now sought to be remitted. It would appear that respondents had produced certain photographs concerning the alternative way and in the light of that photographs they wanted Advocate Commissioner again to visit the properties including the alleged alternative way. In Ext.P9, report Advocate Commissioner has stated that the photographs produced by the respondents are in respect of the alternative way. Grievance of petitioner is that Advocate Commissioner has not reported that the alternative way is not usable and hence it is required to remit Ext.P9, report. Learned Munsiff observed that on the facts and circumstances, report cannot be remitted to the Advocate Commissioner and that during the course of trial petitioner can examine the Advocate Commissioner and 'fill up any lacuna'. Subject to the above observation I.A.No.2379 of 2010 was dismissed. Learned counsel contended that omissions cannot be filled up by examining the Advocate Commissioner and the prayer for remission of Ext.P9, report may be allowed. 3. I have gone through Exts.P4 and P9, reports. If from what the Advocate Commissioner has reported petitioner could make out a case that the alternative way is usable, it is open to him to do so. Having gone through Exts.P4 and P9 I do not consider it necessary to remit Ext.P9 report to the Advocate Commissioner to make a positive statement that the alternative way is not usable. After all, report of the Advocate Commissioner is only a piece of evidence. Petitioner has to prove his case by appropriate evidence. I do not find OP(C) No.759/2010 3 reason to interfere with the order. Petition is dismissed. THOMAS P.JOSEPH, Judge. cks