IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).NO. 25480 OF 2010(O) ---------------------------------------- OS.312/2006 OF MUSNIFF COURT,ADOOR .................... PETITIONER(S): ----------------------- VENUGOPAL.K. AGED 48,S/O.KRISHNAN NAIR, PUTHENVEETTIL HOUSE, KOCHILAMPATTIL, POTHADY MURI, PERINGANADU VILLAGE. BY ADV. SRI.KKM.SHERIF SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.ROSHAN THOMAS RESPONDENT(S): ------------------------ 1. KAMALAMMA, AGED 71 , W/O.DAMODARAN NAIR, CHETTIYARETHU HOUSE, THEKKUMMURIYIL, PERINGANATTU VILLAGE. 2. KAMALAMMA LATHIKA KUMARI,D/O. KAMALAMMA, CHETTIYARETHU HOUSE, THEKKUMMURIYIL, PERINGANATTU VILLAGE. 3. MADHUSOODANAN NAIR, AGED 44, S/O.KRISHNAN NAIR, PUTHENVEETTIL HOUSE, KOCHILAMPATTIL, POTHADY MURI, PERINGANATTU VILLAGE. 4. RAVEENDRAN NAIR, AGED 42, S/O.KRISHNAN NAIR, PUTHENVEETTIL HOUSE, KOCHILAMPATTIL, POTHADY MURI, PERINGANATTU VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.25480 of 2010 ==================================== Dated this the 13th day of August, 2010 J U D G M E N T This Writ Petition is filed by additional defendant No.3 challenging Ext.P8, order dismissing Ext.P6, application to remit Ext.P5, report and Ext.P5(a), plan prepared by the Advocate Commissioner. 2. Dispute concerned plaint D schedule way. Respondent Nos.1 and 2- plaintiffs claimed that they have a right of easement by grant over the said way. Learned counsel for petitioner states that even as per the plaint averments C schedule belonged to the petitioner and respondent Nos.3 and 4-additional defendant Nos.4 and 5. Learned counsel states that though according to respondent Nos.1 and 2 disputed way is C schedule, plan prepared by Advocate Commissioner does not justify that case. There are also other infirmities and inadequacies in the report which persuaded petitioner to file Ext.P6, application for remission. That has been disallowed by the learned Munsiff. Learned counsel states that Ext.P8, order cannot be sustained. W.P(C) No.25480 of 2010 -: 2 :- 3. In the light of the reservation learned Munsiff has made in the impugned order I do not think it necessary to go into the contentions raised by the petitioner. Learned Munsiff has observed though after finding that there is no necessity to remit Ext.P5, report and Ext.P5(a), plan that “at the same time petitioner is not precluded, can adduce evidence if any at the time of trial.” I am persuaded to think that the said observation concerns objection that petitioner has raised to the report and plan submitted by the Advocate Commissioner particularly since Commissioner or Surveyor was not examined on Ext.P6, application. In so far as learned Munsiff has reserved that right of petitioner there is no reason why I should interfere at this stage. With Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv