IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 OP(C).No. 2439 of 2011(O) ------------------------- OS.166/2006 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONER: --------------------- K. RAJAGOPALAN, AGED 44 YEARS, S/O. LATE KUMARAN NAIR, CHERUMIYAL HOUSE, KANJIKODE, PUDUSSERY CENTRAL VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ------------------------------- RAGHAVAN.C., AGED 64 YEARS, S/O. CHAMU, MEENAKSHY NILAYAM, KANJIKODE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001. BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR, SRI.GEEN T.MATHEW. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2439/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE I.A.NO.1370/2009 IN O.S.NO.166/2006 OF THE COURT OF THE MUNSIFF, PALAKKAD. P2: COPY OF THE ORDER DTD. 28/10/2010 IN I.A.NO.1370/2009 IN OS.NO.166/2006 OF THE COURT OF THE MUNSIFF, PALAKKAD. P3: COPY OF THE ORDER DTD. 31/05/2011 IN I.A.NO.1370/2009 IN I.A.NO.829/2006 IN O.S.NO.166/2006 OF THE COURT OF THE MUNSIFF (ADDITIONAL), PALAKKAD. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2439 of 2011 --------------------------------------- Dated this 22nd day of August, 2011 JUDGMENT Petitioner is the defendant in O.S.No.166 of 2006 of the Court of learned Munsiff, Palakkad. That is a suit for a decree for prohibitory injunction filed by the respondent/plaintiff against petitioner trespassing into the suit property over which respondent claimed title and possession as per document dated 14.09.1994. Petitioner contended that the suit property as well as the property on the north belonged to the same person and the property on the north was purchased by him as per sale deed dated 02.07.1994 and in that sale deed a right of access through the suit property along a way having width of 5 feet was granted to the petitioner by the common ancestor. It is also the contention of petitioner that it is subsequent to the assignment in favour of petitioner with right of enjoyment of the said pathway through the suit property that the suit property was assigned to the respondent. Petitioner claimed that the said way is along the western portion of the suit property. 2. Learned Munsiff has obtained reports through Advocate Commissioner. Petitioner filed I.A.No.1370 of 2009 to O.P(C).No.2439 of 2011 -: 2 :- remit the last report and sketch for identifying his own property by measurement and to ascertain the disputed way. According to the petitioner, Commissioner reported that the survey stones on the side of the disputed way has been removed. Learned Munsiff by Ext.P2, order allowed the application in part to the extent that property of petitioner was allowed to be measured. Petitioner was directed to pay requisite bata. That order was challenged in this original petition. Since petitioner did not comply with the direction, I.A.No.1370 of 2009 was dismissed. Petitioner has amended the original petition to challenge the ultimate order (Ext.P3) as well. 3. Learned counsel for petitioner contends that in view of the dispute between parties and since the Advocate Commissioner has reported that he was not able to find the survey stones of the disputed way it is necessary that the suit property is measured and the disputed way is identified. That according to learned counsel is necessary for a just decision of the dispute. Learned counsel for respondent submits that it is not necessary to measure the property as requested in I.A.No.1370 of 2009. O.P(C).No.2439 of 2011 -: 3 :- 4. The suit is merely for decree for prohibitory injunction as if petitioner has no right or interest in the suit property. If as contended by petitioner he is able to show that he has right of access through the suit property, that certainly is a matter which the trial court has to decide in considering the ultimate relief that the respondent has requested for. Now the question is whether measurement of the properties as requested in I.A.No.1370 of 2009 is required. I must bear in mind that Advocate Commissioner in the report sought to be remitted referred to the disputed pathway on the western portion of the suit property. According to the petitioner, through that portion he has withdrawn water pipe. 5. It is relevant to note that in the sale deed in favour of petitioner it is not mentioned along which side of property of respondent the pathway having a width of 5 feet is provided. Hence measurement of property as requested for in this original petition is not required. If petitioner has a right of access through the suit property and if it is his case that the disputed way is along the western portion of the suit property, it is open to the petitioner to prove that. In that view of the matter, measurement of property of respondent much less the property O.P(C).No.2439 of 2011 -: 4 :- of petitioner is not required. Resultantly, without prejudice to the right of petitioner to prove that he has right of access through the property of respondent, this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-