IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 19991 of 2009(O) -------------------------- OS.371/2004 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): -------------------------- BABU, S/O.RAMAKRISHNAN, RESIDING AT ARAPPURA VEEDU, MANJADIMOODU DESOM, CHIRAYINKEEZHU, SARKARA VILLAGE,THIRUVANANTHAPURAM. BY ADV. MR.R.S.KALKURA RESPONDENT(S): --------------------------- ANIRUDHAN, S/O.VISWANATHAN, 'SUMANGALI', VILASOM, KARAKKADA P.O., KIZHUVILOM VILLAGE. BY ADVS. MR.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, MR.P.G.PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19991/2009 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.371/2004 OF THE MUNSIFF'S COURT, ATTINAL. P2: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE DEFENDANTS IN O.S.NO.371/2004 OF THE MUNSIFF'S COURT, ATTINGAL. P3: COPY OF THE ORDER NO.G-5485/05 DTD. 10/06/05 OF RDO, THIRUVANANTHAPURAM. P4: COPY OF THE ORDER IN CRL.R.P.NO.57/05 DTD. 13/06/2006 OF THE SESSIONS COURT, TRIVANDRUM, P5: COPY OF THE COMMISSION APPLICATION IN O.S.NO.371/2004 OF THE MUNSIFF'S COURT, ATTINGAL. P6: COPY OF THE ORDER IN I.A.NO.2504/2005 IN O.S.NO.371/2004 OF THE MUNSIFF'S COURT, ATTINGAL. P7: COPY OF THE APPLICATION FILED BY THE PLAINTIFF AS I.A.NO.434/2009 IN O.S.NO.371/2004 OF THE MUNSIFF'S COURT, ATTINGAL. P8: COPY OF THE ORDER IN I.A.NO.434/09 IN O.S.NO.371/2004 OF THE MUNSIFF'S COURT, ATTINGAL. P9: COPY OF THE COMMISSIONER REPORT IN OS.NO.371/2004 OF THE MUNSIFF'S COURT, ATTINGAL. P10: COPY OF THE PLAN IN O.S.NO.371/2004 OF THE MUNSIFF'S COURT, ATTINGAL. P11: COPY OF THE I.A.NO.1266/2009 IN O.S.NO.371/04 OF THE MUNSIFF'S COURT, ATTINGAL. P12: COPY OF THE OBJECTION FILED BY THE 1ST DEFENDANT IN THE COMMISSION REPORT. P13: COPY OF THE ORDER IN I.A.NO.1266/2009 IN O.S.NO.371/2004 OF THE MUNSIFF'S COURT, ATTINGAL. Kss ..2/- ...2...... WPC.NO.19991/2009 O P14: COPY OF THE REPORT DTD. 28/03/2005 ISSUED BY THE VILLAGE OFFICER SHARKKARA CHIRAYINKIL. P15: COPY OF THE REPORT PREPARED BY THE REVENUE DIVISIONAL OFFICER ON 04/04/2005 AFTER INSPECTION OF THE PROPERTIES. P16: COPY OF THE ORDER OF DISMISSAL BY THE LOCK AYUKTA DTD. 27/02/2009 IN COMPLAINT NO.1682/2006. P17: COPY OF THE STATEMENT DTD. 29/09/2008 SUBMITTED BY THE SUB COLLECTOR/SUB DIVISIONAL MAGISTRATE. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE AMENDED PLAINT IN O.S.NO.371/04 ON THE FILE OF THE HON'BLE MUNSIFF'S COURT, ATTINGAL. R1(B): COPY OF THE COMMISSION REPORT IN O.S.NO.371/2004 ALONG WITH THE SKETCH. R1(C): COPY OF THE JUDGMENT DTD. 28/10/2005 IN WPC.NO.28035/2005. R1(D): COPY OF THE REPORT DTD. 18/08/2009 ISSUED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM TO THE PETITIONER. R1(E): COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER OF SHARKARA VILLAGE. /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 19991 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 10th November, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following relief: “To issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari quashing Ext.P13 as grossly illegal and wrong and permit the petitioner to adduce evidence in support of the commission report and plan and decide the veracity of Ext.P9 and Ext.P10 commission report and plan only after the full- fledged trial of the case by the trial court.” 2. Petitioner is the plaintiff in O.S.No.371 of 2004 on the file of the Munsiff Court, Attingal. Suit is for declaration of the plaintiff's right of easement over 'C' schedule pathway and for prohibitory injunction restraining the defendants from closing that way by constructing a compound wall or causing any obstruction to the plaintiff in enjoying that pathway or from altering its lie and nature. The defendants resisted the suit filing a written statement. Among other contentions, these defendants disputed the very existence of the 'C' schedule pathway. Suit originally was filed setting forth a case that the 'C' schedule pathway was a public way, but, later, amended W.P.C.No.19991/09 - 2 - that it was running through the property of the defendants over which the plaintiff enjoyed a right of prescriptive easement. Admittedly, some proceedings under Section 133 of the Code of Criminal Procedure before the Sub Divisional Magistrate as between the parties in respect of the way continued quite for some time. The defendants have filed another suit as O.S.No.380 of 2004 for a prohibitory injunction to restrain the present petitioner and others, the defendants in the suit, from trespassing upon his property. Joint trial was ordered in both suits since common issues arose for adjudication. Plaintiff moved an application for appointment of a commission to conduct a local inspection and ascertain some matters, which, according to him, were necessary for a proper adjudication of the issues involved in the suit. P5 is the copy of that application. That application was opposed to by the defendants filing objections. The court below allowed P5 application vide P6 order with some directions to the commissioner to locate 'C' schedule way, if in existence, after identifying the property in survey No.1151/A. The Commissioner was directed not to locate the way through the property lying adjacent to survey No.1151/A. Plaintiff, thereupon, moved P7 application for review of P6 order. In the review petition, the petitioner submitted W.P.C.No.19991/09 - 3 - that in view of the direction given by the court restraining the commissioner from locating 'C' schedule pathway in properties adjoining to survey No.1151/A, the Commissioner is obstructed by the defendants from identifying the property, which according to the plaintiff, passed through his property. After hearing both sides, the review petition was disposed by the court vide P8 order with the following directions: “.........I am of the view that the measurements of all the properties including the property of the defendants would resolve the real dispute arose between them. Considering the submission advanced by the counsel for the plaintiff I direct the Advocate Commissioner to measure out the whole properties. But the Adv.Commissioner is not permitted to show the C schedule way through the properties lie in survey No.1151/B and 1151/C. It is made clear that the Advocate Commissioner can locate C schedule way, if in existence, through the property in survey No.1151/A alone. If it now lies as a part of defendants property the commissioner has got right to point out such fact without obstructing the right of the defendants to enjoy the properties in survey No.1151/B, 1151/C and 1150.” W.P.C.No.19991/09 - 4 - P8 is the order passed by the court below in P7 review petition. Pursuant thereto, the commissioner, after conducting local inspection and measurement of the properties involved in the suit, filed P9 report and P10 plan. To P9 report and P10 plan, the respondent/defendant filed objections for setting them aside contending that the specific directions in locating the 'C' schedule pathway given by the court in P6 and P8 orders had been violated by the Advocate Commissioner. P11 is the application moved by the respondent for setting aside the report and plan and P12 is objections to that report. The learned Munsiff after considering the objections raised by the defendants and hearing the counsel on both sides, passed P13 order setting aside the report and plan holding that in locating 'C' schedule pathway, the directions issued by the court in P6 and P8 orders had been flouted by the Commissioner. Propriety and correctness of P13 order is challenged in the writ petition by the petitioner/plaintiff invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. The respondent, on appearance, has filed a counter affidavit and produced Exts.R1(a) to R1(e). In the counter supporting P13 order passed by the court below, it is contended, there is no illegality W.P.C.No.19991/09 - 5 - or impropriety in that order for interference in exercise of the visitorial jurisdiction vested with this court. 4. Petitioner has produced a few more documents after the filing of the petition as P14 to P17 to canvass support for the reliefs claimed by him. 5. After hearing the counsel on both sides at length and taking note of the facts and circumstances involved with reference to the materials tendered, I find that the directions issued by the court under P6 and P8 orders to the advocate commissioner and also P13 order passed later setting aside P9 report and P10 plan prepared by the advocate commissioner holding that the directions given by the court had been violated in locating 'C' schedule pathway clearly indicate that there was no application of mind as to the real issues involved in the suit on which adjudication of the court was called for. The crux of the issue was not in which survey number 'C' schedule pathway, if in existence, passed through, but, the existence of such a pathway through the property of the defendant in whatever survey number it is comprised of. What is noticed is too much significance is given to the sub division numbers of the survey number, but, not to the question of existence or nonexistence of 'C' schedule pathway W.P.C.No.19991/09 - 6 - over which the plaintiff claimed a right of prescriptive easement. Previously, plaintiff had canvassed a case that 'C' schedule pathway was a public way, and by amendment, a totally conflicting and inconsistent plea of right of prescriptive easement over that way was sought for. Since that amendment had been allowed and the suit is proceeding as such, nothing more need be said on that question at this juncture. Even assuming that there is some discrepancy in the plaint allegation as to in which sub divisions through which the 'C' schedule pathway is stated to be running, that is of little consequence in locating that pathway when an advocate commission is deputed for that purpose. Whatever be the objections raised by the defendants in the suit, the learned Munsiff was not justified in directing the commissioner not to locate that pathway through a particular sub division of the survey number. The question involved is the existence of the pathway and not through which sub divisions that pathway passed through. That is a matter for determination by evidence at a later stage. I find the direction issued to the advocate commissioner under P8 order on the review petition (P7) filed by the plaintiff is thoroughly confusing and capable of giving rise to different interpretation and meaning. Commissioner is given the right to point W.P.C.No.19991/09 - 7 - out the lie of the pathway even if it is running through the property of the defendant, but, at the same time restrained in locating such way only through the property in survey Nos.1151/B and 1151/C. It is the location of 'C' schedule pathway, if in existence, whether or not it passed through the property of the defendant, and whichever survey number it is situated, that is to be given significance and not of the sub division numbers through which the pathway passed through in locating that way. The learned counsel for the petitioner/plalintiff submitted that some discrepancy had occurred in making reference to the sub division numbers of the survey number in the plaint and also in the schedule including 'C' schedule pathway, and so much so, opportunity be given to correct the mistake in the sub division numbers in tune with the report and plan prepared by the advocate commissioner. It is open to the plaintiff to move the court below in case any correction or amendment is required by filing a petition as provided by law, and if any such petition is filed, after hearing the opposite party, the same shall be considered and disposed by the court below on its merits. 6. Normally, this court would have been reluctant to interfere with any order passed by a subordinate court with respect to a W.P.C.No.19991/09 - 8 - commission report in a pending suit after evaluating its merit, but, in the present case, as it is noticed that the directions given by the court to the advocate commissioner in executing the commission order were not only not proper but without application of mind to the cardinal issues arising for adjudication in the suit, I find P13 order cannot be sustained. P6 and P8 orders passed by the court below are also set aside along with P13 order, directing the court below to examine the objections to the report and plan canvassed by the defendant at the trial of the suit. If steps are taken for substantiating such objections by examining the advocate commissioner and also the surveyor and then the court has to decide the question whether report and plan require to be set aside, and a fresh report and plan to be collected, or any further clarification on remitting the report of the commissioner is necessary, or of accepting the report and plan as such. In case any application for amendment is moved by the petitioner/plaintiff, and if that is allowed, that also should be taken note of by the court in judging the merit of the report and plan. However, I make it clear that the evaluation of the report and plan shall be done as if there was no direction under P6 and P8 orders, which are set aside. An enquiry on the merit of the commission report W.P.C.No.19991/09 - 9 - and plan also need be proceeded only at the trial of the suit, and if for any reason it is found the report and plan are not acceptable, then the trial has to proceed only subject to further orders as to getting of a fresh report and plan on remission, or of seeking further clarification, as the case may be. Subject to the above directions, the writ petition disposed of. srd S.S. SATHEESACHANDRAN, JUDGE