IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 OP(C).No. 3719 of 2011(O) ---------------------------------------- ( IA .NO.1599/2011 IN OS.44/2010 of MUNSIFF COURT, TIRUR) .................... PETITIONER ------------------- VELLIYATH MOIDEENKUTTY, S/O.KUNHAVA, THANALUR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): --------------------------- 1. MOOTHEDATH YOUSUF HAJI, THANALUR AMSOM DESOM, THANALUR POST, TIRUR TALUK, MALAPPURAM DISTRICT.PIN-686 061 2. VAHID, S/O.MOOTHEDATH YOUSUF HAJI, THANALUR AMSOM DESOM, THANALUR POST, TIRUR TALUK, MALAPPURAM DISTRICT.PIN-686 061 3. BEEYU, W/O.UDGUNGAL ABDULLA KUTTY, THANALUR AMSOM DESOM, THANALUR POST, TIRUR TALUK, MALAPPURAM DISTRICT.PIN-686 061 4. ABIDHA, D/O.ABDULLA KUTTY, UDGUNGAL HOUSE, THANALUR AMSOM DESOM, THANALUR POST, TIRUR TALUK, MALAPPURAM DISTRICT.686 061 BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.3719/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 THE TRUE COPY OF THE PLAINT IN O.S.NO.44/10 OF THE MUNSIFF COURT, TIRUR DATED 19.2.10. EXT.P2 THE TRUE COPY OF THE WRITTEN STATEMENT OF THE DEFENDANTS 1 AND 2 IN O.S.NO.44/10 OF THE MUNSIFF COURT, TIRUR DATED 12.1.2011. EXT.P3 THE TRUE COPY OF THE WRITTEN STATEMENT OF THE 3RD DEFENDANT IN O.S.NO.44/10 OF THE MUNSIFF COURT, TIRUR DATED 26.3.2010. EXT.P4 THE TRUE COPY OF THE WRITTEN STATEMENT OF THE 4TH DEFENDANT IN O.S.NO.44/10 OF THE MUNSIFF COURT, TIRUR DATED 12.1.2011. EXT.P5 THE TRUE COPY OF THE COMMISSIONER'S PLAN AND REPORT DATED 10.3.2010 IN O.S.NO.44/2010 OF THE MUNSIFF COURT, TIRUR. EXT.P6 THE TRUE COPY OF THE OBJECTION TO COMMISSION REPORT FILED BY THE PETITIIONER DATED 9.8.2011. EXT.P7 THE TRUE COPY OF THE OBJECTION TO COMMISSION REPORT FILED BY THE 2ND RESPONDENT DATED 11.3.2010. EXT.P8 THE TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A.NO.1599/11 IN O.S.44/10 OF MUNSIFF COURT,TIRUR DATED 9.8.2011. EXT.P9 THE TRUE COPY OF THE COUNTER DATED 9.8.2011 IN I.A.NO.1599/11 IN O.S.44/11 OF MUNSIFF COURT, TIRUR. EXT.P10 THE TRUE COPY OF THE ORDER IN I.A.NO.1599/2011 IN O.S.44/2010 OF THE MUNSIFF COURT, TIRUR DATED 21.10.2011. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3719 of 2011 -------------------------------------- Dated this the 16th day of November, 2011. JUDGMENT Plaintiff in O.S.No.44 of 2010 of the court of learned Munsiff, Tirur is the petitioner, challenging Ext.P10, order rejecting Ext.P8, application for appointment of a survey commission for identification of properties and to prepare a plan. 2. According to the petitioner, he is entitled to a right of easement by way of necessity. The way is claimed through the property of respondents. Respondents filed written statement disputing the claim of petitioner and contending that the suit property as well as their property did not form part of the common tenement. The Advocate Commissioner who inspected the property submitted a report and sketch. Later, petitioner filed Ext.P8, application for a survey commission. That was objected by the respondents. Learned Munsiff dismissed Ext.P8, application by Ext.P10, order. That order is under challenge. Learned counsel contended that having regard to the contentions raised, appointment of a survey commission is necessary. 3. I am unable to agree, for, the claim is easement by way of necessity and that should be with respect to the existing way as per averments in the plaint. To report on the existence of a way, measurement of the property with the assistance of a surveyor is not required. Nor is a survey commission is OP(C)No.3719/2011 2 required to prove that the suit property and properties of respondents or any of them formed part of the common tenement. Learned Munsiff rightly observed that this is not a fact to be proved by identifying the properties with the help of documents. Having regard to the nature of claim raised, I am not inclined to think that a survey commission is required. In that view of the matter there is no reason to interfere with Ext.P10, order. Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks