IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 WP(C).No. 28904 of 2010(O) -------------------------- AGAINST THE ORDER IN IA.1067/2010 IN OS.166/2008 of ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONERS: --------------- 1. PADMINI AMMA, ARIKARAN VELIYIL, PANAVALLY, CHERTHALA. 2. BHASKARAN NAIR DO..DO.. BY ADV. SRI.J.OM PRAKASH RESPONDENT: --------------- P.J.JOSEPH, PALATHINKAL, THOTTAKAM PO,VAIKOM 686 607. ADV. SRI.T.JAYAKRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28904 of 2010 APPENDIX PETITIONERS EXHIBITS EXHIBIT P1 : PLAINT IN O.S.NO.116/2008 DATED 05-02-2008 EXHIBIT P2 : WRITTEN STATEMENT IN O.S.NO.116/2008 EXHIBIT P3 : JUDGMENT IN CRL. REV. PET. NO.702/2000 DTD 25-10-2007 OF THIS HONOURABLE COURT EXHIBIT P4 : REPORT FILED BY ADVOCATE COMMISSIONER SMT. RAJI S IN O.S.NO.116/2008 DATED 21-02-2008 EXHIBIT P5 : I A NO.1067/2000 DTD 18-03-2010 EXHIBIT P6 : OBJECTION IN I A NO.1067/2000 DTD 09-06-2010 EXHIBIT P7 : ORDER IN I A NO.1067/2000 IN O.S.NO.166 OF 2008 DTD 30- 06-2010 OF THE ADDL MUNSIFFS COURT, CHERTHALA True Copy P A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.28904 of 2010 --------------------------------------- Dated this 20th day of December, 2010 JUDGMENT Plaintiffs in O.S.No.166 of 2008 of the court of learned Munsiff, Cherthala are the petitioners before me challenging Ext. P7, application for appointment of commission to measure plaint B schedule property and identify plaint C schedule, disputed way. Learned Munsiff dismissed the application observing that the suit is not for fixation of boundary and that there is no need to identify plaint C schedule way by survey. It is contended in this petition that order of the learned Munsiff is not correct. 2. Petitioners filed the suit for a declaration of right of easement by prescription over plaint C schedule way which is alleged to pass through plaint B schedule belonging to the respondent. Respondent denied existence of C schedule way and contended that disputed C schedule is part of plaint B schedule belonging to him. In Ext.P4, Advocate Commissioner reported that he could not identify C schedule way since he could not enter plaint B schedule as the said property has compound wall on all sides and its gate was locked. W.P(C).No.28904 of 2010 : 2 : 3. It is contended by learned counsel for respondent that Ext.P4, report was filed as early as on 21-02-2008 but, Ext.P5, application was preferred only after the case was included for trial in the list. It is also contended that in the nature of relief prayed for, there is absolutely no necessity to measure the property of respondent as prayed for in Ext.P5. 4. So far as request for measurement of plaint B schedule is concerned, I am inclined to accept the argument of learned counsel for respondent and as rightly pointed out by learned Munsiff this is not a suit for fixation of boundary between C and B schedule so that B schedule must have been identified by a survey. Declaration of easement over C schedule allegedly passing through plaint B schedule is prayer for. Hence what is required is only to report on the existence of C schedule allegedly passing through B schedule for which a survey commission is not required. That part of the prayer in Ext.P5, order was rightly rejected by the learned Munsiff and I do not find reason to interfere. 5. But having regard to the facts and circumstances emerging from Ext.P4, report that the gate of B schedule property was locked and hence Commissioner could not enter plaint B schedule and ascertain whether there is any such way. I am inclined to allow the request in Ext.P5, application to the W.P(C).No.28904 of 2010 : 3 : extent it concerned ascertaining whether there is any such way as stated in plaint C schedule and passing through plaint B schedule. Learned counsel for respondent in fairness has stated that respondent will open the gate of plaint B schedule to give access to the Advocate Commissioner to that property to report on the existence of the disputed way. That submission is recorded. Resultantly this petition is allowed in part in the following lines: Ext.P7, order to the extent it rejected request to report on existence of the disputed plaint C schedule allegedly passing through plaint B schedule is set aside and Ext.P5, application to that extent is allowed. Petitioners are permitted to take out the same Advocate Commissioner if he is available (in case he is not available the court below may appoint another Commissioner) to ascertain whether there is any such pathway as described in plaint C schedule passing through plaint B schedule and if so, its details and prepare a sketch showing its lie, position, length and width and such other datas as are necessary. Respondent shall open the gate of plaint B schedule to give access to the Advocate Commissioner for the said purpose. It is made clear that for the said purpose, assistance of a Surveyor is not required. Court below shall fix the bata payable to the Advocate Commissioner. (THOMAS P JOSEPH, JUDGE) Sbna/-