IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 WP(C).No. 28236 of 2010(O) -------------------------- IA NO.1554/2009 IN OS.184/2009 of PRINCIPAL MUNSIFF COURT, KOCHI .................... PETITIONER(S): --------------- ALEXANDER, AGED 67 YEARS, S/O. MANUEL, PANACHIKKAL HOUSE, C.C.21/627, PARK ROAD, PERUMPADAPPU, PALLURUTHY VILLAGE, KOCHI TALUK. BY ADV. SRI.M.S.UNNIKRISHNAN RESPONDENT(S): --------------- CHARLY, AGED 55 YEARS, S/O. MANUEL, PANACHIKKAL HOUSE, C.C. 21/1113, PARK ROAD, PERUMPADAPPU, PALLURUTHY VILLAGE, KOCHI TALUK. ADV. SRI.G.SREEKUMAR (CHELUR) SRI RAVI K.PARIYARATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.28236/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF THE PLAINT IN OS NO.184/2009 FILED BY PETITIONER EXT.P2 TRUE PHOTOCOPY OF THE DETAILED WRITTEN STATEMENT FILED BY THE RESPONDENT EXT.P3 TRUE PHOTOCOPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA 3548/2009 EXT.P4 TRUE PHOTOCOPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 6.6.2009 EXT.P5 TRUE PHOTOCOPY OF IA NO.1554/2009 FOR APPOINTING AN ADVOCATE COMMISSIONER FILED BY THE PETITIONER EXT.P6 TRUE PHOTOCOPY OF THE OBJECTION TO THE COMMISSION APPLICATION FILED BY THE PETITIONER EXT.P7 TRUE PHOTOCOPY OF THE WORK MEMO TO NOTE ADDL.POINTS FILED BY THE PETITIONER EXT.P8 TRUE PHOTOCOPY OF THE OBJECTION TO THE WORK MEMO FILED BY THE RESPONDENT EXT.P9 TRUE PHOTOCOPY OF THE ORDER DATED 23.7.2010 IN OS 184/2009 OF THE PRINCIPAL MUNSIFF COURT, KOCHI. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.28236 of 2010 -------------------------------------- Dated this the 8th day of November, 2010. JUDGMENT Defendant in O.S.No.184 of 2009 of the court of learned Principal Munsiff, Kochi is the petitioner before me. O.S.No.184 of 2009 is a suit filed by respondent for fixation of boundary and for other reliefs. In the meantime petitioner filed O.S.No.180 of 2009 for a decree for prohibitory injunction claiming right of easement. In O.S.No.184 of 2009 respondent filed Ext.P5, application for appointment of an Advocate Commissioner to measure the property (for fixation of boundary as prayed for in the suit). Petitioner filed Ext.P7, work memo requesting the Advocate Commissioner to ascertain the items referred to therein. Learned Munsiff passed Ext.P9, order appointing an Advocate Commissioner and directing him to report on item Nos.1, 3, 5, 7 and 8 in Ext.P5, application and item No.1 in Ext.P7, work memo. Petitioner is aggrieved to the extent that the rest of request made in Ext.P7, work memo was rejected by the learned Munsiff. It is pointed out by the learned counsel that item No.1 in Ext.P7, work memo having been allowed item No.2 is only consequent to item No.1 and for the purpose of deciding the disputes involved in both cases it was necessary that item No.2 onwards requested for in Ext.P7, work memo was also allowed to be ascertained through Advocate Commissioner. 2. I have heard learned counsel on both sides. The dispute is concerning item No.2 onwards in Ext.P7, work memo. Item No.1 in Ext.P7 is to WP(C) No.28236/2010 2 measure the property of petitioner/defendant with reference to document No.2279 of 1983, its prior documents and village records and fix common boundary with the suit property in O.S.No.184/2009. Item No.2 in Ext.P7, work memo in short is to ascertain and report on the alleged boundary made of bricks reported by the Advocate Commissioner in Ext.P4 and matters allied thereto. Item No.4 in Ext.P7, work memo is to ascertain the situation of property in between the gap having a width of 3.10 metres reported by Advocate Commissioner as existing on the southern compound wall of respondent/plaintiff and the residential building of the petitioner. So far as the other items in Ext.P7 are concerned, no serious argument is advanced before me by the learned counsel for petitioner and going through Ext.P7, work memo I find no reason to think that those matters are required to be ascertained. Now the dispute is confined to item Nos. 2 and 4 in Ext.P7. It is seen from Ext.P4 that the Advocate Commissioner has reported about the alleged boundary made of bricks on the northern side of property of respondent (suit property) and the Commissioner has also referred to certain plants planted inside the said construction. On the west of property of petitioner (ie. on the east of suit property in O.S.No.184 of 2009) Commissioner reported in Ext.P4 about flower pots and construction of a small fence. Petitioner wants those matters to be identified with reference to item No.1 in Ext.P7 which is already allowed by learned Munsiff. 3. So far as item No.4 is concerned, it is with reference to the plea of easement that petitioner has raised in O.S.No.184 of 2009. Petitioner wants the Commissioner to ascertain what exactly is the position of property in between the WP(C) No.28236/2010 3 gap having width of 3.10. metres on the southern compound wall of respondent and the residential building of petitioner. Having regard to the facts and circumstances these matters can be directed to be ascertained by Advocate Commissioner. That did not in any way cause prejudice to the respondent. Resultantly this petition is allowed in part in the following lines: i. Ext.P9, order to the extent it rejected request of petitioner to ascertain and report on item Nos.2 and 4 in Ext.P7, work memo is set aside and the prayer of petitioner to ascertain and report on item Nos.2 and 4 in Ext.P7 will stand allowed. But I make it clear that the Advocate Commissioner need only to report the factual situation of property requested for in item Nos.2 and 4 in Ext.P7 and that he is not required to make any observation as to any right of easement as claimed by petitioner. ii. Additional batta if any payable to the Advocate Commissioner by petitioner shall be fixed by the learned Munsiff. THOMAS P.JOSEPH, Judge. cks