IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 OP(C).No. 311 of 2010(O) ------------------------ OS.180/2008 of MUNSIFF COURT, TIRUR .................... PETITIONER: ------------------- KUNHIMARAKKAR, AGED 53 YEARS, S/O.MOITHEENKUTTY, CHAKKACHINTEPURAKKAL, NIRAMARUTHUR AMSOM DESOM, POST NIRAMARUTHUR, TIRUR, MALAPPURAM DISTRICT, REPRESENTED BY P/AT.AGENT, ASMA, D/O.MUHAMMED (WIFE)NIRAMARUTHUR AMSOM DESOM,POST NIRAMARUTHUR,TIRUR,MALAPPURAM DT. BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENTS: --------------- 1. HANEEFA, AGED 38 YEARS, S/O.KUNJIMON, NIRAMARUTHUR AMSOM DESOM, POST NIRAMARUTHUR, TIRUR, MALAPPURAM DISTRICT. 2. ISMAIL, AGED 34 YEARS, S/O.KUNJIMON, NIRAMARUTHUR AMSOM DESOM, POST NIRAMARUTHUR, TIRUR, MALAPPURAM DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No. 311 of 2010 --------------------------------------- Dated this 13th day of October, 2010 JUDGMENT Plaintiff in O.S.No.180 of 2008 of the court of learned Munsiff, Tirur challenges Ext.P4, order dated September 30, 2010 on I.A.No.2409 of 2010 refusing to remit report and sketch submitted by the Advocate Commissioner. Petitioner filed the suit for a decree for prohibitory injunction to restrain respondents from interfering from his enjoyment of the disputed pathway allegedly passing through property of respondents. An Advocate Commissioner inspected the property immediately after institution of the suit and submitted report and sketch on 01-07-2008. In paragraph 4 of Ext.P1, report the Commissioner has stated about petitioner constructing a new fence with coconut cogent leaf along with side of the road on the north and west of the property of respondents and a beaten track having a width of about 1½ meters on the side of that fence. Commissioner again inspected the property as ordered by court and submitted Ext.P2, report dated 03-12-2009 where also Commissioner has asserted what she reported in Ext.P1 but, giving width of the beaten track more clearly at different portions. Petitioner was not satisfied with the O.P(C).No.311 of 2010 : 2 : report and sketch in that the beaten track was not shown in the sketch. It is accordingly that petitioner filed I.A.No.2409 of 2010 for remission of the report and sketch. Learned Munsiff has disallowed that application vide Ext.P4, order. It is contended by learned counsel that to decide the controversy and particularly since petitioner is claiming title in respect of disputed way it was necessary to remit the report to Advocate Commissioner. Petitioner is also aggrieved by the observation made by learned Sub Judge in the impugned order which according to the learned counsel may affect ultimate decision of the suit. 2. I have gone through Exts.P1 and P2. Commissioner has reported what she had seen at the spot. Moreover, learned Munsiff has observed that if at a later stage (obviously during trial) court feels it necessary to call for a further report it can be done even without application from either of the parties. That also was one of the reason for dismissing the application. Since learned Munsiff has provided an opportunity to call for a further report if it is found necessary at appropriate stage, it is not necessary to interfere with the order under challenge. 3. So far as grievance of petitioner regarding the observation made by learned Munsiff in page II, last but one paragraph of the order as to the lack of pleadings as to the existing O.P(C).No.311 of 2010 : 3 : way is concerned I make it clear that observation shall not influence the ultimate decision in the suit. With the above observation this petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-