IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 WP(C).No. 6368 of 2010(O) -------------------------------------- OS.281/2004 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER(S): ----------------------- 1. JOSEPH, AGED 61, S/O.JOSEPH, PONNATTIL HOUSE,ELAMDESAM KARA,ALAKODE VILLAGE, THODUPUZHA TALUK.IDUKKI DISTRICT. 2. JOBY, S/O. JOSEPH, PONNATTIL HOUSE, ELAMDESAM KARA, ALAKODE VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ------------------------- MARY @ LAILAMMA, W/O.JOSE, NEDUMKALLEL HOUSE,NAGAPPUZHA KARA, KALLOORKADU VILLAGE, THODUPUZHA. ADV. SRI.PAULSON THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6368/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 281/04 DTD. 19.10.04 ON THE FILE OF THE MUNSIFF COURT, THODUPUZHA. P2:- COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE THIRD DEFENDANT IN OS. 281/04 ON THE FILE OF THE MUNSIFF COURT, THODUPUZHA DTD. NIL. P3:- COPY OF THE FINAL DECREE PASSED IA NO.171.98 IN OS. NO.73/95 DTD. 28.7.00 ON THE FILE OF THE SUB COURT, THODUPUZHA. P4:- COPY OF THE COMMISSIONER REPORT AND PLAN SUBMITTED IN EXT.P1 SUIT DTD. 25.5.2006. P5:- COPY OF THE APPLICATION IN IA. NO.1047/06 IN OS. NO.281/04 DT.D 4.8.06. P6:- COPY OF THE ORDER PASSED IN IA. NO.1047/06 IN OS. NO.281/04 ON THE FILE OF THE MUNSIFF COURT, THODUPUZHA DT.D 3.2.2010. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA. 1047/2006 IN OS. 281.2004. R1(b):- COPY OF THE PLAN ATTACHED TO P3 FINAL DECREE. R1(c):- COPY OF THE COMMON JUDGMENT IN OS.281/2004 AND OS.6/2005 OF MUNISFF'S COURT, THODUPUZHA. R1(d):- COPY OF THE ORDE RIN AS.360/2002 DT. 15.10.2003. R1(e):- COPY OF THE ORDER IN CRP. NO.1586/2003 DT.D 1.9.2003. TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J. ........................................... W.P.(C).NO.6368 OF 2010 ............................................. Dated this the 21st day of March, 2011. JUDGMENT Aggrieved by an order declining to set aside the Commissioner's report, the petitioners in I.A.No.1047/2006 in O.S.No.281/2004 have come up before this Court under Article 227 of the Constitution of India. The facts absolutely necessary for the disposal of this petition are as follows: The respondent before this Court instituted O.S.No.281/2004 on 19.10.2004 against four defendants, out of which petitioners are the third and fourth defendants, for various reliefs. It is seen that the dispute actually relates to a pathway, which according to the plaintiff was determined in the final decree proceedings in an earlier suit between the parties. The grievance of the petitioners is that the defendants had trespassed into a portion of the pathway and reduced it into their possession. 2. Petitioners, who were defendants 3 and 4 in the suit, are not parties to the final decree proceedings referred to earlier. The contention of defendants 3 and 4 is that they : 2 : W.P.(C).NO.6368 OF 2010 have not trespassed into any portion of the pathway as shown in the plan appended to the final decree proceedings. 3. A commission was taken out and the Commissioner has filed a report and plan. In the report filed by the Commissioner, it was pointed out that item No.1 shown in the sketch is the portion trespassed into by the 3rd and 4th defendants into the pathway that was shown in the plan appended to the final decree proceedings. 4. Aggrieved by the observation of the Commissioner, the petitioners have preferred I.A.No.1047/2006 seeking to have the Commissioner's report set aside on the ground that the Commissioner has not mentioned the width of the pathway in the sketch now produced before the court. 5. The court after a careful evaluation of the materials found that there was no substance in the contention taken by the petitioners and dismissed the petition. 6. The learned counsel appearing for the petitioners pointed out that the court below has not clearly understood the nature of the grievance raised by the petitioners. According to the learned counsel, the plaintiff in the suit claimed the pathway having a width of 10 feet and nothing : 3 : W.P.(C).NO.6368 OF 2010 more. But as per the Commissioner's report the width of the pathway is not shown. The learned counsel appearing for the respondent submits that there is absolutely no merit in the contention taken by the petitioners before this Court. According to the learned counsel, the present sketch which shows the pathway by the Commissioner is correct and there is no error in the plan now submitted. It may be noticed that defendants 1 and 2 and the plaintiff were parties to the earlier suit. 7. This Court is given to understand that defendants 3 and 4 purchased the properties on 24.1.2006 and the suit was instituted on 19.10.2004. The plea is that the plaintiff is entitled to 10 feet pathway as shown in the plan in the final decree proceedings which would be evident from clause-3 of Ext.P3. The court has found that there is no substance in the grievance of the petitioners. There is no merit in the contention of the petitioners saying that the width of the pathway should be 10 feet only as the plan appended to the final decree clearly shows the lie of the pathway. So the lie of the pathway, according to the plaintiff, is easily identifiable from the plan appended : 4 : W.P.(C).NO.6368 OF 2010 to the final decree. The Commissioner has reported that on the western and eastern sides of the pathway, the boundaries are well laid. The Commissioner has pointed out that item 1 shown in the sketch is the area trespassed into by the defendants. The question is whether the plaintiff is entitled to only 10 feet of pathway or whether she is entitled to the pathway as shown in the final decree proceedings. If, as a matter of fact, there is a pathway in the plan appended to the final decree to which the predecessor in interest of the defendants were parties, of course the defendants, would be bound by the same. This is a matter to be determined at the trial of suit. Therefore this petition is dismissed giving liberty to the petitioners to urge all their contentions at the time of trial. P. BHAVADASAN, JUDGE. cl : 5 : W.P.(C).NO.6368 OF 2010