IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 OP(C).No. 3753 of 2011(O) ---------------------------------- OS.247/2008 of MUNSIFF COURT, PUNALUR .............................................................................. PETITIONERS/PETITIONERS/PLAINTIFFS ---------------------------------------------------------- 1. VALSALA GOPINATH, D/O.GOMATHY, THULASI VILASOM VEEDU, VADAMON MURI, ANCHAL, KOLLAM DISTRICT. 2. SACHIN NADH, S/O.LATE GOPINATHAN, THULASI VILASOM VEEDU, VADAMON MURI, ANCHAL, KOLLAM DISTRICT. BY ADVS. SRI.K.V.ANIL KUMAR SRI.N.P.PRADEEP RESPONDENTS/ RESPONDENTS/DEFENDANTS ------------------------------------------------------------------ 1. KUNJUMON, MULLASSERIYIL VEEDU, VADAMON MURI, AREEPLACHI (PO), ANCHAL VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN 691306. 2. DEEPTHY, D/O.BALACHANDRAN, MEKKULATHU VEEDU, VADAMON MURI, AREEPLACHI (PO), ANCHAL VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN - 691306. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKM OP(C).No. 3753 of 2011(O) ---------------------------------------- APPENDIX PETITIONER(S) EXHIBITS : P1 : COPY OF THE PLAINT IN O.S.247/2008 ON THE FILE OF THE MUNSIFF'S COURT, PUNALUR. P2 : COPY OF THE COMMISSION REPORT DATED 08.08.2008 IN O.S.247/2008 ON THE FILE OF THE MUNSIFF'S COURT, PUNALUR. P3 : COPY OF THE I.A.NO.1464/2011 IN O.S.247/2008 ON THE FILE OF THE MUNSIFF'S COURT, PUNALUR. P4 : COPY OF THE ORDER IN IA.NO.1464/2011 IN OS.NO.247/2008 N THE FILE OF THE MUNSIFF'S COURT, PUNALUR. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ PA TO JUDGE RKM THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3753 of 2011 --------------------------------------- Dated this 18th day of November, 2011 JUDGMENT Plaintiffs in O.S.No.247 of 2008 of the Court of learned Musniff, Punalur challenges Ext.P4, order refusing to appoint survey commission in a suit for declaration of right of easement by way of prescription over the disputed way. 2. Petitioners claimed right of easement by way of prescription over plaint B schedule way describing it as having a length of 20 meters and width of 5feet. The Advocate Commissioner inspected the property and submitted Ext.P2, report where, in paragraph 10 the disputed way is described as having length of 25½ meters and width of 2½ feet. Advocate Commissioner also submitted rough sketch along with Ext.P2, report. Later came Ext.P3, application for the appointment of a survey commission. That application was dismissed by the learned Munsiff observing that in a suit of this nature, a measurement of the properties as requested for in Ext.P3, application is not required. Learned counsel for petitioners contends that some obstruction is caused to the way by the respondents after filing of the report and that for a proper O.P(C).No.3753 of 2011 -: 2 :- execution of the decree, a survey commission is required. 3. I cannot accept that argument. In Ext.P3, application request made is to survey the suit properties with reference to the survey plan and other documents, show the disputed way separately and also note the changes allegedly made to the disputed way after Ext.P2, report. I am not inclined to think that in a suit of this nature where the claim is for declaration of easement by way of prescription and the Advocate Commissioner in Ext.P2, report has reported on the way as it existed at the time of inspection, a survey commission as prayed for is required. In that view of the matter, I do not find reason to interfere. This original petition is dismissed. (THOMAS P. JOSEPH, JUDGE) Sbna/-