IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 OP(C).No. 210 of 2010(O) ------------------------ AGAINST THE ORDER DATED 25/01/2010 IN IA.215/2010 IN OS.1751/2009 of II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM .................... PETITIONERS ------------------------------- 1. M.S.JYOTHI, D/O.LATE MADHAVAN PILLAI, T.C. 1/1979(1), VISHAKH, KUMARAPURAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM. 2. K.PRATAPHACHANDRAN NAIR, S/O.KESAVAN NAIR, T.C. 1/1979(1), VISHAKH, KUMARAPURAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY ADV. SRI.S.SANTHOSH KUMAR (BALARAMAPURAM) RESPONDENT(S): --------------- 1. DR.GIRISH, S/O.LATE MADHAVAN PILLAI, TC 1/1978, GOKULAM, KUMARAPURAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM PIN CODE - 695 011. 2. M.S.SHOBHA, D/O.LATE MADHAVAN PILLAI, TC 1/1978, GOKULAM, KUMARAPURAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM PIN CODE - 695 011. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.210 of 2010 -------------------------------------- Dated this the 6th day of October, 2010. JUDGMENT This petition, at the instance of petitioners/defendants arises from Ext.P6, order dated January 25, 2010 on I.A.No.215 of 2010 in O.S.No.1751 of 2009 of the court of learned Additional Munsiff-II, Thiruvananthapuram refusing to appoint an Advocate Commissioner. Respondents/plaintiffs filed the suit for a declaration and consequential injunction. It is not disputed that plaint A and B schedules belong to the respondents as per partition deed No.3755 of 1980 and plaint C schedule belongs to petitioner No.1/defendant No.1 as per the same partition deed. Respondents claimed that plaint D schedule is the pathway formed through their property for access to their property and petitioners were permitted to use the said pathway for access to the plaint C schedule. Later they revoked that permission. Thereon they have filed the suit for a declaration that plaint D schedule pathway is part of plaint A and B schedules and meant for the exclusive use of respondents/plaintiffs and seeking a prohibitory injunction restraining respondents from using plaint D schedule, pathway. Petitioners filed written statement contending that nature and description of plaint C schedule are not correct and presently plaint C schedule is divided into two parts and has independent access from plaint D schedule to each of the two parts. Though Advocate Commissioner had inspected the property and submitted a report and sketch petitioners are not satisfied with that in the sense that the report and OP(C) No.210/2010 2 sketch do not reflect the present lie of plaint C schedule since according to the petitioners it remained as two parts. Hence they filed I.A.No.215 of 2010 to depute an Advocate Commissioner. That application was resisted by respondents stating that proper description of plaint A to D schedules is contained in the sketch and that no further report and sketch is required. Learned Additional Munsiff vide Ext.P6, order dismissed I.A.No.215 of 2010. Learned counsel states that the old building is situated in the western part of plaint C schedule while the new building is situated in the counter claim A schedule property (ie. the eastern part of plaint C schedule) and hence it is necessary to depute an Advocate Commissioner to report on that matter. 2. There is already a commission report (Ext.P2). There is no dispute regarding the lie of plaint A to D schedules. Claim of petitioners is only that presently plaint C schedule lies in two parts as above stated. I must bear in mind that what is claimed in the counter claim is only an easement by way of necessity. I am not going into the question as to the entitlement of petitioners to claim easement by way of necessity since that is a matter which the trial court has to decide after considering evidence on record and the point of law involved. Having regard to the claim made in the counter claim and considering the lie of property even as the learned counsel would state, I am not inclined to think that it is necessary to depute an Advocate Commissioner. Report of the Advocate Commissioner is only an item of evidence and it is open to the OP(C) No.210/2010 3 petitioner to prove that western part of plaint C schedule is occupied by old building and that the new building is situated on the eastern part, the counter claim A schedule property. I must bear in mind that in the sketch accompanying Ext.P2, report Advocate Commissioner has shown the position of old and new buildings in the plaint C schedule and also shown the position of gate for access to the plaint C schedule from the public road on the west and gates for access to the two buildings in plaint C schedule from the D schedule pathway. Hence the learned Munsiff has disallowed the prayer of petitioner. The order does not suffer from any illegality calling for interference under Article 227 of the Constitution. Petition is dismissed. THOMAS P.JOSEPH, Judge. cks