IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 WP(C).No. 6347 of 2008(E) ------------------------------------ PETITIONER: ------------------ ALEYAMMA GEORGE, AGED 76 YEARS, RESIDING AT PALAKKUNNATHU PEEDIKAYIL(KUNNIPARAMBIL) MAMMOOD BHAGOM, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK. BY ADV. SRI.MVS.NAMBOOTHIRY SRI.P.C.CHERIAN SRI.DEEPAK THOMAS RESPONDENTS: ------------------------ 1. KURIAN SEBASTIAN @ PAPPACHAN, PULLANKALAM HOUSE, MAMMOODU BHAGOM,MADAPPALLY KARA MADAPPALLY VILLAGE, CHANGANACHERRY-686553. 2. KUNJOONJU, S/O. PAPPU, MULAKKUZHA HOUSE, VELIYAMBHAGOM,MADAPPALLY VILLAGE CHANGANACHERRY-686553. 3. JISHA ALPHONSA THOMAS, PULLANKULAM HOUSE, PALARIVATTOM, KOCHI-682024. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No. 6347/2008 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE COMMISSION REPORT FILED BY ADVOCATE SUNIL KUMAR IN OS NO. 76/2006 BEFORE THE MUNSIFF COURT, CHANGANACHERRY. EXT.P2. COPY OF THE STATEMENT FILED BY THE 3RD DEFENDANT IN OS NO. 76/2006. EXT.P3. COPY OF THE IA NO. 252/2008 IN OS NO. 76/06. EXT.P4. COPY OF THE ORDER DT. 20/2/2008 IN OS NO. 76/06. RESPONDENT'S EXHIBITS : NIL. / TRUE COPY / tga M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 6347 OF 2008 ------------------------------------------ Dated this the 11th day of July, 2008 JUDGMENT Notice was sent to second respondent as early as 17.3.2008. It is not returned. As notice is not returned, it is deemed to have been served. Service declared completed. 2. Petitioner is the plaintiff and respondents the defendants in O.S. 76 of 2006 on the file of Munsiff Court, Changanacherry. I.A. 252 of 2008 was filed for appointment of a commission. Under Ext.P4 order learned Munsiff dismissed the petition. This petition is filed under Article 227 of Constitution of India to challenge Ext.P4 order. 3. Learned counsel appearing for petitioner was heard. Under Ext.P4 order learned Munsiff dismissed the application finding that lateral support will be available only if the property of petitioner is retained in its natural condition and a wall was constructed in the boundary burdening the property and thereby the natural condition of the property changed and in such circumstances there is no necessity to appoint an expert commission. True, as far as lateral support is considered, it can WPC6347/08 2 be claimed only if the property is retained in the natural condition. But, a right on easement by prescription could be claimed in respect of the property burdened by putting structures provided the conditions provided under Easement Act are satisfied. Learned Munsiff was not justified to shut out the relevant evidence by dismissing the application. Question whether petitioner is entitled to the right claimed is to be decided after recording the evidence. In such circumstances, Ext.P4 order is quashed. Learned Munsiff is directed to appoint the expert commission as sought for in I.A. 252 of 2008. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-