IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 28529 of 2010(O) -------------------------- OS.120/2008 of PRL.MUNSIFF COURT, .KOZHIKODE-I .................... PETITIONER/ DEFENDANT: ------------------------ KODAMANA BALAMANIAMMA, D/O. DEVAKIAMMA, AGED 60 YEARS, KODAMANA VEEDU, ELANDOOR AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.NIRMAL. S RESPONDENTS/PLAINTIFFS: ------------------------- 1. POONATHIL RAMAKURUPPU, S/O. P.K.KANARAN NAIR, AGED 82 YEARS, KODAMANA VEEDU, ELANDOOR AMSOM, DESOM, KOZHIKODE TALUK. 2. KODAMANA PADMINIAMMA, D/O. LAKSHMI AMMA, AGED 72 YEARS, KODAMANA VEEDU, ELANDOOR AMSOM, DESOM, KOZHIKODE TALUK. 3. KODAMANA SOORYAPRABHA, D/O. PADMINIAMMA, AGED 60 YEARS, KODAMANA VEEDU, ELANDOOR AMSOM, DESOM, KOZHIKODE TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.28529 of 2010 --------------------------------------- Dated this 16th day of September, 2010 JUDGMENT Petitioner, who is a defendant in O.S.No.120 of 2008 of the court of learned Principal Munsiff-I, Kozhikode challenges Ext.P8, order dismissing I.A.No.1410 of 2008. That was an application filed by petitioner/defendant to set aside the report and sketch prepared by the Advocate Commissioner. Respondents claimed right of easement by way of prescription through plaint C schedule which according to them passed through plaint B schedule belonging to the petitioner, for access to plaint A schedule items which belonged to the respondents. The Advocate Commissioner submitted report and sketch showing plaint A schedule items, B schedule and the disputed plaint C schedule. On the request of petitioner, report was set aside by the learned Munsiff which came in challenge in this court in W.P.C.No.18530 of 2009. This court set aside the order of learned Munsiff and remitted the matter for fresh consideration. Thereafter the Advocate Commissioner was examined as PW1. Learned Munsiff vide Ext.P8, order declined to remit the report and sketch. Hence this writ petition. Learned counsel contends that matters W.P.C.No.28529 of 2010 : 2 : requested for in his work memo have not been ascertained by the Advocate Commissioner. It is also stated that matters which are relevant for consideration and decision of the dispute are not ascertained by the Advocate Commissioner. These aspects were not taken into account by learned Munsiff. Learned counsel contended that order under challenge is liable to be set aside. 2. As I stated, suit is for injunction based on a claim of easement by way of prescription along disputed plaint C schedule. According to the respondents and as the Advocate Commissioner also shows disputed C schedule passes through almost middle of plaint B schedule. Commissioner has reported existence of plaint C schedule to the extent he was able to identify it and regarding the rest of the portion he has stated that there was no specific demarcation to separate plaint C schedule from plaint B schedule. Commissioner has also shown plaint A schedule properties though, item wise it is not specifically shown in the sketch. In paragraph 3 of the report, Advocate Commissioner has stated about plaint A schedule items. But in the sketch plaint A schedule item Nos.1 and 2 are shown as one compact plot while, A schedule item Nos.3 and 4 are shown as another compact plot. There is no separation between plaint A schedule item Nos. 1 and 2 and 3 and 4. Commissioner stated that he had not measured the property with reference to the W.P.C.No.28529 of 2010 : 3 : document of title of respondents but, I must remember that this is not a suit on title but it is only a suit for injunction based on right of easement by way of prescription. There is no dispute for petitioner that plaint A schedule items are now in the possession and enjoyment of respondents. Hence I am not persuaded to think that failure of the Advocate Commissioner to measure plaint A schedule items with reference to the document of title is in any way fatal to the case or affected decision of the controversy involved. 3. Another objection raised by petitioner is that oldness of plaint C schedule has not been ascertained by the Advocate Commissioner. Regarding that, Advocate Commissioner has stated that since he found sand spread over the disputed way he was not able to identify the oldness. If Advocate Commissioner was not able to identify the oldness, there is no point in remitting the report and asking him to ascertain the oldness. Parties could lead other evidence as to the oldness. Yet another objection raised is that on the side of property of Swarnalatha there is a way which the Advocate Commissioner has not made mention. But the Advocate Commissioner has stated that he was not able to see any such way. 4. Yet another objection is that property of petitioner lying in taks 1 and 2 were not identified by measurement. W.P.C.No.28529 of 2010 : 4 : Regarding that also I may say that the suit is not on title and it is only for enforcement of right of easement by way of prescription. I have gone through the report and sketch and the petition filed by petitioner. Learned Munsiff, referring to the report and evidence of PW1 has stated that all matters relevant for decision of the case has been reported by the Advocate Commissioner as he found at the spot and that remission of the report is not required. I must also bear in mind that report of the Advocate Commissioner is not the final verdict in the matter and it is only a piece of evidence. Parties have the opportunity to adduce evidence in support of their contention. Unless the refusal to remit the report has resulted in any failure of justice interference under Article 227 of the Constitution is not necessary. I do not find reason to interfere with the impugned order. But I make it clear that it is open to the petitioner to adduce all his evidence in support of the contention he has raised. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-