IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WP(C).No. 3394 of 2010(O) ------------------------- AGAINST THE ORDER DATED 14.12.2009 IN IA 1761/2009 IN OS.100/2008 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONERS:- 1. JOY, AGED 57 YEARS, S/O. PAILYPILLAI, MAMBAKKATTU HOUSE, KUMMANOD KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 2. AVARACHAN, AGED 45 YEARS, S/O. PAILYPILLAI, MAMBAKKATTU HOUSE, KUMMANOD KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 3. GEORGE, AGED 42 YEARS, S/O. PAILYPILLAI, MAMBAKKATTU HOUSE, KUMMANOD KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 4. KURIACHAN, AGED 39 YEARS,S/O. PAILYPILLAI, MAMBAKKATTU HOUSE, KUMMANOD KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 5. BIJU, AGED 37 YEARS, S/O. PAILYPILLAI, MAMBAKKATTU HOUSE, KUMMANOD KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. MR. G.RAJAGOPAL MS. N.RENJINEE DEVI RESPONDENTS:- 1. KOCHUPATHUMMA, AGED ABOUT 78 YEARS, W/O. AHAMMADPILLA, PARAMBILLIKKUDY HOUSE, RESIDING AT VALAPPIL THACHAYIL, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. W.P.(C) No. 3394/2010 : 2 : 2. KHADERKUNJU, AGED ABOUT 60 YEARS, S/O. AHAMMADPILLA, PARAMBILLIKKUDY HOUSE, RESIDING AT VALAPPIL THACHAYIL, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 3. MUSTHAFA, AGED ABOUT 55 YEARS, S/O. AHAMMADPILLA, PARAMBILLIKKUDY HOUSE, RESIDING AT VALAPPIL THACHAYIL, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 4. HASSANKUNJU, AGED ABOUT 49 YEARS, S/O. AHAMMADPILLA, PARAMBILLIKKUDY HOUSE, RESIDING AT VALAPPIL THACHAYIL, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 5. KHADEEJA, AGED ABOUT 62 YEARS, S/O. AHAMMADPILLA, PARAMBILLIKKUDY HOUSE, RESIDING AT VALAPPIL THACHAYIL, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 6. LAILABHAI, AGED ABOUT 45 YEARS, D/O. AHAMMADPILLA, PARAMBILLIKKUDY HOUSE, RESIDING AT VALAPPIL THACHAYIL, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 7. KHAMAR BEEVI, AGED ABOUT 32 YEARS, D/O. AHAMMADPILLA, PARAMBILLIKKUDY HOUSE, RESIDING AT VALAPPIL THACHAYIL, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 8. SHAHALA (MINOR), D/O. SHANAVAS, VALAPPIL THACHAYIL, CHELAKKULAM KARA, PATTIMATTOM VILLAGE REPRESENTED BY KHADEEJA, AGED ABOUT 62 YEARS, S/O. AHAMMADPILLA, PARAMBILLIKKUDY HOUSE, RESIDING AT VALAPPIL THACHAYIL, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- W.P.(C). No. 3394 of 2010 ---------------------------------------------------- Dated this the 2nd day of February, 2010. JUDGMENT The plaintiffs in O.S. No. 100 of 2008 on the file of the Munsiff's Court, Perumbavoor are the writ petitioners. The said suit is for a declaration of the alleged right of easement by grant over the plaint B schedule strip of land said to be having a width of 3.6 metres ( 12 feet) and for consequential injunction. 2. The petitioners had taken out an emergent Commissioner along with the suit. The Commissioner filed Ext.P2 report as per which the average width of the disputed pathway is 12 feet. Thereafter, the plaintiffs took out a survey commission and Ext.P3 is the report as per which the average width was found in between 2.9 and 2.4 metres with a width of 3.6 metres at the two extremities of the pathway. Alleging that Ext.P3 report was factually incorrect and if accepted it would amount to reduction in the width from the width noted at the time of Ext.P2 report, the petitioners filed I.A. No. 1761 of 2009 to remit the report to the same Commissioner with survey assistance. As per Ext.P7 order, the court below has rejected the W.P.(C) No. 3394/2010 : 2 : said application. Hence this writ petition. 3. The learned counsel for the petitioners would submit that Ext.P5 application, namely, I.A. No. 1761 of 2009 has been dismissed without giving the petitioners an opportunity to examine the Commissioner and that the petitioners have therefore, lost the opportunity to remit the report to the Commissioner. I am not inclined to interfere with Ext.P7 order merely because the petitioners were denied an opportunity to summon and examine the Commissioner and the surveyor. The petitioners can during the trial of the case summon the commissioner and the surveyor, if necessary and attempt to substantiate their objections with regard to Ext.P3 report and plan. Reserving this right of the petitioners, this writ petition is dismissed. Dated this the 2nd day of February, 2010. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 3394/2010 : 3 :