IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 36924 of 2008(U) -------------------------- OS.274/2006 of MUNSIFF COURT, CHITTUR .................... PETITIONER: --------------- JAYANTHI, D/O. MURUKAN MASTER, ANU ILLAM, PAZHANIYAPPA NAGAR, 95, E.B. COLONY, COIMBATORE TOWN, COIMBATORE DISTRICT. BY ADV. MR.A.SREERAMA KRISHNAN RESPONDENT: --------------- OMANA @ OMANAKUTTY, W/O. CHELLAPPAN NAIR, BANGLAVU PARAMB, THATTAMANGALAM VILLAGE, CHITTUR TALUK. ADV. MR.RAJESH SIVARAMANKUTTY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36924 of 2008(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PLAINT IN O.S.NO.274/2006 ON THE FILE OF THE MUNSIFF COURT, CHITTUR DTD. 25.05.2006. EXT.P2: WRITTEN STATEMENT FILED BY THE DEFENDANT DTD. 24.09.2006. EXT.P3: ROUGH SKETCH AND REPORT SUBMITTED BYTHE COMMISSIONER DTD. 29.5.2006. EXT.P4: REPORT SUBMITTED BY ADDITIONAL TAHSILDAR DTD. 16.2.2006. EXT.P5: I.A.NO.347/2008 IN O.S.NO.274/2006 ALONG WITH THE ORDERS PASSED THEREON DATED 06.02.2008. RESPONDENT'S EXHIBITS: NIL ORDER ON I.A.NO.11477/2009 ON W.P.(C).NO.36924/2008 DISMISSED. 14.1.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE. // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.36924 of 2008 - U --------------------------------- Dated this the 14th day of January, 2010 J U D G M E N T Petitioner is the defendant in O.S.No.274 of 2006 on the file of the Munsiff Court, Chittur. Suit is one for declaration of right of prescriptive easement over a pathway, which is described as B schedule, and for injunction; and, the respondent is the plaintiff. Petitioner/defendant had filed a written statement resisting the suit claim. At the instance of the plaintiff an advocate commissioner deputed by the court after conducting a local inspection prepared a report and rough plan showing the B schedule pathway. To such a report and plan the defendant filed objections in which he also sought for ascertainment of some matters by the commissioner by remitting the report and plan. Learned Munsiff after hearing both sides ordered for remission of the report directing for determination of only one of the two points sought for by the defendants. Petitioner defendant challenged the order of the court below to the extent it has declined the ascertainment of one among the two points W.P.(C).No.36924 of 2008 - u 2 canvassed by him by filing the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. 3. Learned counsel for the petitioner/defendant submitted that the defendant has sought for ascertainment of measurement of her property in accordance with the survey plan and documents and also whether the plaintiff has any other alternate way. The court below has allowed the determination of the 2nd point alone as to whether the plaintiff is in enjoyment of the B schedule pathway. Since the plaintiff has sought for a declaration of right of prescriptive easement over B schedule pathway the existence of an alternate way, even if it is so established, may not have any decisive effect. However after hearing the counsel on both sides and examining the materials produced and noticing that the commissioner deputed earlier had only prepared a rough plan which is grossly insufficient to identify B schedule pathway allegedly running through the property of the defendant, I find the request of the defendant for identification of W.P.(C).No.36924 of 2008 - u 3 the property with reference to survey records and also documents ought to have been allowed by the court. When the commissioner is deputed to ascertain that matter it is open to the plaintiff to seek for determination of B schedule way also with specific particulars showing its exact measurements. In case any such request is made by the plaintiff then the court below shall see that expenses for deputing the commissioner are met by both parties equally. The order passed by the learned Munsiff declining the request of the defendant with respect to ascertainment of point No.1 canvassed in Ext.P5 application is set aside directing the advocate commissioner deputed to determine that point as well while executing the commission order. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-