IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 19525 of 2010(O) -------------------------- IA NO.1702/2009 IN OS.98/2009 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): --------------- CHEROOTTARA SAROJINI AMMA, D/O.NARAYANI AMMA, KOOMBANKUNNU EDAVARMB (P.O) PULINGOME, KANNUR DISTRICT. BY ADV. SRI.MAHESH V RAMAKRISHNAN RESPONDENT(S): --------------- 1. ALICE KALLINKAL, D/O.KUNCHU, KOOMBANKUNNU, EDAVAMBA (P.O) PULINGOME, KANNUR DISTRICT. 2. BINU KALLINKAL, S/O.KUNCHU, KOOMBANKUNNU, EDAVAMBA (P.O) PULINGOME, KANNUR DISTRICT. ADV. SRI.A.C.DEVASIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.19525/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT DATED 4.7.2009 IN OS 98/2009 ON THE FILE OF MUNSIFF COURT, PAYYANNUR EXT.P2 TRUE COPY OF COMMISSION REPORT DATED 14.7.2009 SUBMITTED BY ADVOCATE COMMISSIONER IN OS 98/2009 EXT.P3 TRUE COPY OF WRITTEN STATEMENT DATED 19.8.2009 FILED BY DEFENDANT IN IN OS 98/2009 ON THE FILE OF MUNSIFF COURT, PAYYANNUR EXT.P4 TRUE COPY OF IA NO.1702/2009 DATED 21.10.2009 IN OS 98/2009 ON THE FILE OF MUNSIFF COURT, PAYYANNUR EXT.P5 TRUE COPY OF ORDER DATED 16.3.2010 IN IA NO.1702/2009 IN OS 98/2009 ON THE FILE OF MUNSIFF COURT, PAYYANNUR //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19525 of 2010 -------------------------------------- Dated this the 21st day of July, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P5, order refusing to depute an Advocate Commissioner with the assistance of Village Assistant to identify the disputed pathway. Petitioner sued the respondents for a declaration of what he called, prescriptive right of easement over the disputed way. Respondents denied existence of any such way as pleaded by petitioner. Advocate Commissioner inspected properties and submitted report and sketch, Exts.P2. Advocate Commissioner has shown existence of the disputed way. He has also shown length and width of the said way at certain points. Grievance of petitioner is that the said way is not drawn in the sketch in scale and in the absence of that, if a decree is passed in favour of petitioner she might face difficulties in execution since there is no properly drawn sketch regarding width of the way. It would appear that respondents filed an application for issue of commission to ascertain certain matters in tune with the contentions they raised in the written statement but that application was dismissed. Application preferred by petitioner for appointment of Advocate Commissioner with the assistance of Village Assistant was dismissed as per Ext.P5, order observing that it is not the normal practice in such suits to have a plan drawn to scale. Learned counsel for petitioner contends that on the facts of the case a properly drawn sketch is essential. WP(C) No.19525/2010 2 Learned counsel for respondents contend that existing way was formed for gaining access to the property of respondents and over that way petitioner has no right. 2. It is true that in the case of a suit on easement, a survey commission is not always. But in this case it is seen that Advocate Commissioner has not given width of the way at all relevant points so that in case a decree is passed, the sketch already on record could not be made use of . As such I am inclined to allow the request of petitioner. 3. But I make it clear that assistance of Village Assistant or other Surveyor as the case may be will be made use of only for the limited purpose of drawing the disputed C schedule pathway to scale showing its length and width at all relevant points. Learned counsel for respondents state that they may be permitted to file work memo to Advocate Commissioner to ascertain certain matters referred to in the written statement. Having regard to the facts and circumstances, I do not find reason to disallow that prayer. Resultantly, this Writ Petition is allowed in the following lines: i. Ext.P5, order dismissing I.A.No.1702 of 2009 is set aside and that application is allowed to the extent that court below shall depute an Advocate Commissioner with the assistance of Village Assistant or other Surveyor to identify the disputed C schedule and prepare a plan drawn in scale showing its length and width at all relevant points. WP(C) No.19525/2010 3 ii. Respondents are permitted to submit work memo in the court below. Learned Munsiff shall consider the work memo and direct Advocate Commissioner to report on matters asked for in the work memo and which are relevant for decision of the case in the light of contentions raised by respondents. iii. Batta payable to the Advocate Commissioner shall be fixed by learned Munsiff and considering extent of work requested to be done by respondents, learned Munsiff may direct parties to share batta so payable to the Advocate Commissioner and the Village Assistant/Surveyor. iv. Learned Munsiff shall adjourn the case listed for trial on 02.08.2010 to some other day so that in the meantime report and plan could be obtained. THOMAS P.JOSEPH, Judge. cks