IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 OP(C).No. 2459 of 2011(O) ------------------------- I.A.NO.1263/2011 AND I.A.NO.1264/2011 IN OS.188/2009 of MUNSIFF'S COURT, NORTH PARAVUR . .................... PETITIONER/PLAINTIFF: ----------------------------------- SUDHAKARAN,S/O.THANKAPPAN PILLAI, THAILOTH VEEDU,JYOLSNA,KIZHAKKEPRAM, KOTTUVALLY VILLAGE. BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE, SMT.ACHU SUBHA ABRAHAM, SRI.M.B.SHAJI. RESPONDENT(S): PLAINTIFF: ---------------------------------------------- SAJAN,S/O.JOSEPH,ELANJIKKAL VEETTIL, PARAVOOTHARA,PARAVUR VILLAGE,PIN 683 513. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2459/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT DTD. 23/11/2009 IN O.S.NO.188/2009 FILED BEFORE THE MUNSIFF'S COURT, NORTH PARAVUR. P2: COPY OF THE WRITTEN STATEMENT FILED IN O.S.NO.188/2009 OF MUNSIFF'S COURT, NORTH PARAVUR DTD. 10/07/2009. P3: COPY OF I.A.NO.1263/2011 FILED IN O.S.NO.188/2009 OF MUNSIFF'S COURT, NORTH PARAVUR DTD. 16/07/2011. P4: COPY OF I.A.NO.1264/2011 FILED IN O.S.NO.188/2009 OF MUNSIFF'S COURT, NORTH PARAVUR DTD. 16/07/2011. P5: COPY OF THE COUNTER AFFIDAVIT TO I.A.NO.1263/2011 FILED IN O.S.NO.188/2009 OF MUNSIFF'S COURT, NORTH PARAVUR. P6: COPY OF THE COUNTER AFFIDAVIT TO I.A.NO.1264/2011 FILED IN O.S.NO.188/2009 OF MUNSIFF'S COURT, NORTH PARAVUR. P7: COPY OF THE ORDER IN I.A.NO.1263/2011 IN O.S.NO.188/2009 OF MUNSIFF'S COURT, NORTH PARAVUR. P8: COPY OF THE ORDER IN I.A.NO.1264/2011 IN O.S.NO.188/2009 OF MUNSIFF'S COURT, NORTH PARAVUR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2459 of 2011 --------------------------------------- Dated this 08th day of August, 2011 JUDGMENT Exts.P7 and P8, orders in O.S.No.188 of 2009 of the court of learned Munsiff, North Paravur is under challenge in this proceeding. By Ext.P7, order learned Munsiff has rejected Ext.P3, application for the appointment of a commission on the ground that there is no need to measure the property as claimed by petitioner. By Ext.P8, order learned Munsiff negatived the request for amendment of plaint stating that trial has started, evidence of plaintiff is closed and allowing amendment will cause prejudice to the respondent/defendant. 2. According to the petitioner-plaintiff, the property originally belonged to his father, Thankappan Pillai and his sister, Padmavathiyamma who entered into a partition as per document No.5197 of 1986 and the A schedule in the partition deed, 12.50 cents was alloted to the share of Thankappan Pillai while, Padmavathiyamma got 21.50 cents as C schedule in the partition deed. Along the eastern side of property of Padmavathiyamma, Thankappan Pillai was given a right of access to the A schedule in the said document. That way at that time had width of 5 links. O.P(C).No.2459 of 2011 -: 2 :- Later, there was an understanding between Thankappan Pillai and Padmavathiyamma as per which Padmavathiyamma transferred a total of 12 links wide space (including the said 5 links wide space) towards east of her property in favour of Thankappan Pillai, in exchange of Thankappan Pillai transfering 938sq.links out of the 12.50cents he got as A schedule, to the said Padmavathiyamma. The said exchange was made as per document No.2922 of 1990. Later, Thankappan Pillai assigned plaint A schedule – 11.562 cents (excluding 938sq.links transferred to Padmavathiyamma by way of exchange) and his right over the 12 links wide space (plaint B schedule) as per document No.2923 of 1990. Petitioner claims that he is the owner of B schedule having width of 12 links and was using the said way for access to the plaint A schedule. While so, Padmavathiyamma died and between petitioner and the children of Padmavathiyamma, there was an agreement executed on 13.03.2003 as per which the children of Padmavathiyamma were permitted to use plaint B schedule for access to their property since by that time, they had transferred, towards the north- eastern corner of their property a portion of their property to one Beena, wife of Salin. Later, legal representatives of Padmavathiyamma assigned their right over the property which Padmavathiyamma got as per partition deed (including O.P(C).No.2459 of 2011 -: 3 :- 938sq.links referred above) to the respondent. Petitioner agreed that respondent could gain access to the property belonging to him through plaint B schedule but, at a time when respondent asserted independent right over plaint B schedule and attempted to take water connection, electric line, cable and telephone connection through plaint B schedule petitioner filed the suit for a decree for prohibitory injunction. Respondent contended that he is entitled to right of access through plaint B schedule as per document No.2633 of 2008. But that document was not produced along with the written statement. In the course of evidence on 08.07.2011, respondent produced a copy of the said sale deed (which referred to a pathway having width of 15 links along the eastern side of the property of the respondent (forming part of plaint B schedule as well) and as if he has got independent right over the said way. Thereon petitioner wanted the plaint to be amended to say that recitals in sale deed No.2633 of 2008 will not bind him and for the said purpose filed Ext.P4, application. That application was resisted by the respondent. Since in the document of title produced by the respondent, width of disputed way is stated as 15 links, petitioner wanted an Advocate Commissioner to inspect the property and measure the width of plaint B schedule way. That application was dismissed by Ext.P7, order. Petitioner is aggrieved. O.P(C).No.2459 of 2011 -: 4 :- 3. Learned counsel has contended that in view of the statement in the written statement, though not specific that respondent has absolute right over the disputed way on the strength of recitals in the document of title in his favour, it is necessary to say in the plaint that the said document is not binding on petitioner. It is also stated that Advocate Commissioner has inspected the property and prepared rough sketch and in the nature of contentions raised by the respondent producing the document of title which mentioned the width of the way as 15 links, it is not necessary that Advocate Commissioner inspected the property and measured the same. 4. So far as Ext.P4, application for amendment and Ext.P8, order are concerned, I am not inclined to think that interference is required. It is not the case of petitioner that the assignment deed in favour of respondent was executed before the exchange deed No.2922 of 1990. If according to the petitioner, he got absolute right over plaint B schedule as per exchange deed No.2922 of 1990 allegedly executed by Padmavathiyamma, question of her legal representatives assigning any right over the property over which themselves had no right does not arise. I must also bear in mind that petitioner or his predecessor-in- interest is not a party to the sale deed No.2633 of 2008. Therefore, in my view amendment of the plaint to avoid sale deed O.P(C).No.2459 of 2011 -: 5 :- No.2633 of 2008 is not required since if the predecessor-in- interest of respondent had no right to convey title to the respondent over the disputed property, it is not necessary for petitioner to plead that the said document is not binding on him. Therefore though not for the reason stated by learned Munsiff, I do not find reason to interfere with Ext.P8, order. 5. Coming to Ext.P3, application for issue of commission is concerned, I am inclined to think that measurement of the property is required. As per exchange deed No.2922 of 1990 executed between predecessor-in-interest of petitioners and respondent entitlement of petitioner is over the B schedule having width of 12 links. But, according to the respondent, he has right over a way having a width of 15 links as per sale deed No.2633 of 2008. In that situation, it is necessary to identify the pathway having width of 12 links (described as plaint B schedule with reference to the title deeds). Resultantly this original petition is allowed in part as follows: (i) Ext.P8, order dismissing Ext.P4, application for the reason stated above is confirmed but making it clear that it is open to the petitioner to raise appropriate contentions before learned Munsiff that the assignment deed in favour of respondent is not binding on him. O.P(C).No.2459 of 2011 -: 6 :- (ii) Ext.P7, order is set aside. Ext.P3 application will stand allowed. Court below shall appoint an Advocate Commissioner to prepare a report and plan as prayed for in Ext.P3. If respondent wants any matter relevant for adjudication of the dispute to be ascertained through the Advocate Commissioner, it is open to the respondent to file work memo before Court and the Court shall decide on such matter as required to be identified having regard to the dispute involved in the case. (iii) The bata payable to the Commissioner shall be fixed by the court below and if respondent files work memo, respondent shall also bear a portion of bata payable to the Commissioner. (THOMAS P JOSEPH, JUDGE) Sbna/-