IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 15222 of 2008(K) -------------------------- PETITIONER: ------------ JONACHAN, AGED 46 YEARS, S/O. OUSEPH, OVUMGAMALY HOUSE, PULLUVAZHY KARA, KUNNATHUNADU TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENTS: ------------- 1. VARKEY, AGED 70, S/O. PAILY, KALAMMALY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK. 2. MARY, W/O. KURIAKOSE, KALAMMALY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK. 3. BIJU, S/O. KURIAKOSE, KALAMMALY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE,RESIDING AT PADIKKAKUDY HOUSE NEDUNGAPRA, VENGOOR VILLAGE. 4. BAIJU (BINU), S/O. KURIAKOSE, KALAMMALY HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, RESIDING AT PADIKKAKUDY HOUSE, NEDUNGAPRA, VENGOOR VILLAGE. 5. DEVASSY, S/O. CHACKO, NANGELIMALY HOUSE, PULLUVAZHY KARA, VENGOOR WEST VILLAGE. BY ADV. SRI.MURALI PURUSHOTHAMAN FOR R1 & 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.15222 of 2008 EXT.P1 : TRUE COPY OF JUDGMENT IN W.P.(C) No.33789/07 DATED 21.2.2008 EXT.P2 : TRUE COPY OF PETITION NO.I.A.1856/07 IN O.S.221/05 OF MUNSIFF'S COURT, PERUMBAVOOR, DATED 1.8.07 EXT.P3 :TRUE COPY OF OBJECTION FILED TO EXT.P2 BY 5TH RESPONDENT ON 7.12.2007 EXT.P4 : TRUE COPY OF ORDER IN I.A.NO.1856/07 IN O.S.221/05 OF MUNSIFF'S COURT, PERUMBAVOOR, DATED 8.4.2008. //TRUE COPY// P.A. To Judge. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.15222 of 2008 ------------------------------- Dated this the 4th July, 2008. J U D G M E N T Petitioner is the plaintiff and respondents the defendants in O.S.No.221 of 2005, on the file of Munsiff Court, Perumbavoor. Under Ext.P4 order, petition for appointment of a commission was dismissed. It is challenged in this petition filed under Article 227 of the Constitution of India. The reasons for dismissal of the application as seen in Ext.P4 order are that there is already a report submitted by the Commissioner in O.S.No.467 of 1998, which is jointly tried along with O.S.No.221/2005, and there is no dispute with regard to the identity of the property, and a survey plan is not necessary for resolving the disputes involved in the case. It was also found that as the right of way claimed is a right of quasi easement, availability of alternate way is not very relevant. 2. The learned counsel appearing for the petitioner vehemently argued that though right of way claimed is a right of quasi easement, on the evidence, if the court finds that right available is W.P.(C) No.15222/2008 2 right of easement by necessity, the existence of alternate way is relevant and if the evidence sought to be furnished by appointment of a commission was not allowed, that evidence will not be available, and it will prejudice the petitioner. 3. The learned counsel appearing for respondents 1 and 5 submitted that respondents are not claiming a right of easement by necessity at all. Right of way claimed in the suit is right of quasi easement. In such circumstances, there is no necessity for appointment of a commission, as in the nature of the claims raised, existence of an alternate way is not relevant. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.