IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 OP(C).No. 34 of 2011(O) ----------------------------------- OS.NO.355/2009 of MUNSIFF COURT, HOSDRUG .................... PETITIONER ------------------- NEENA VARGHESE, AGED 36 YEARS, W/O.ALEX K.ZACHARIA, RESIDING AT KUTHUKALLINGAL HOUSE, MELANCHERRY, MANDAPAM, BEEMANODY VILLAGE OF HOSDRUG TALUK, KASARAGOD DISTRICT. REPRESENTED BY HER POWER OF ATTORNEY HOLDER THOMAS K.ZACHARIA, AGED 36 YEARS, R/AT DO.. DO.. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): --------------------------- 1. ANNAMMA JOSEPH, AGED 70 YEARS, W/O.LATE JOSEPH, KIZHAKKE CHETHIPUZHA HOUSE, THACHAMPOIL, BEEMANODY VILLAGE, HOSDRUG TALUK, P.O.MANDAPAM.PIN-671 326 2. BINDU ANTONY, AGED 32 YEARS, W/O.ANTONY JOSEPH, KIZHAKKE CHETHIPUZHA HOUSE, THACHAMPOIL, BEEMANODY VILLAGE, HOSDRUG TALUK, P.O.MANDAPAM.PIN-671 326 3. CHAKKOCHAN @ SIBY, AGED 40 YEARS, S/O.LATE JOSEPH, KIZHAKKE CHETHIPUZHA HOUSE, THACHAMPOIL, BEEMANODY VILLAGE, HOSDRUG TALUK, P.O.MANDAPAM.PIN-671 326 4. BABU @ KURIAN JOSEPH, AGED 46 YEARS, S/O.LATE JOSEPH, KIZHAKKE CHETHIPUZHA HOUSE, THACHAMPOIL, BEEMANODY VILLAGE, HOSDRUG TALUK, P.O.MANDAPAM.PIN-671 326 R1 TO R3 BY ADV. SRI.JAWAHAR JOSE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.34/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE COMMISSION REPORT DATED 3/3/2010 P1(A) COPY OF THE PLAN ACCOMPANYING EXHIBIT P1 COMMISSION REPORT. P2 COPY OF THE I.A.NO.1991/2010 P3 COPY OF THE ORDER DATED 22/9/2010 OF THE COURT OF THE MUNSIFF, HOSDRUG IN I.A.NO.1991/10 IN O.S.NO.355/09. P4 COPY OF THE SITE PLAN PREPARED BY THE QUALIFIED CIVIL ENGINEER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.34 of 2011 --------------------------------------- Dated this 02nd day of August, 2011 JUDGMENT Petitioner is plaintiff in O.S.No.355 of 2009 of the Court of learned Munsiff, Hosdurg. Petitioner prayed for a decree for prohibitory injunction to restrain respondents from trespassing into the suit property, demolishing the existing fence or forming any road through the property. The said suit was filed on 13.10.2009. On the request of petitioner an Advocate Commissioner inspected the property on 15.10.2009 and submitted Ext.P1, report. Respondents filed written statement contending that they have a right of easement by prescription along the way running through the property belonging to the petitioner and originating from the panchayath road on the extreme north. Issues were framed on 13.01.2010 and thereafter the case was posted for pre-trial steps on several occasions. On 06.09.2010, petitioner filed Ext.P2, application for appointment of an Advocate Commissioner to note that on either side of the western boundary of the suit property, there are platforms and rubber plantation and also to report that there are no footprints through property of petitioner. That application was resisted by O.P(C).No.34 of 2011 -: 2 :- the respondents. Learned Munsiff dismissed the application by Ext.P3, order dated 22.09.2010 observing that the parties can adduce oral evidence and if necessary in the course of trial Commissioner could be appointed. The order dated 22.09.2010 is under challenge in this original petition filed on 04.01.2011. In the meantime the case was posted for trial in the list on 08.12.2010 and PWs.1 to 3 were examined. On closure of the evidence of petitioner, case was posted for evidence of respondent on 03.01.2011. DW1 was examined on that day. Learned counsel for respondents submits that the case was posted for further defence evidence on 07.01.2011 on which day the predecessors-in-interest of petitioner were to be examined on the side of respondents to prove that even before petitioner acquired the suit property, there was a way in existence through the said property and which respondents and predecessors-in- interest were using as of right. It is at that stage that this original petition was filed on 04.01.2011 to set aside Ext.P3, order dated 22.09.2010 and to depute another Advocate Commissioner. 2. Learned counsel for petitioner has contended that for an effective decision of the suit, it is necessary to appoint an Advocate Commissioner and that existence of platform in the O.P(C).No.34 of 2011 -: 3 :- property of respondents abducting boundary of the suit property would indicate that there was no such pathway as claimed by the respondents or as reported by the Advocate Commissioner. 3. Fact remained that Advocate Commissioner inspected the property on 15.10.2009 and shorty thereafter submitted report and sketch in March 2010. Ext.P2, application was filed only on 06.09.2010. It is relevant to note that in Ext.P1, report and Ext.P1(a), sketch Advocate Commissioner has referred to the existence of footprint along the suit property going towards property of first respondent on the further west (according to the learned counsel for petitioner, without continuity) and originating from the public road on the northern side. That report stands and so far as that report stands there could not be any further application for commission to show that there was no such footprint as reported by the Advocate Commissioner. 4. Yet another request petitioner has made in Ext.P2, application is to note that first respondent has constructed platform where the footprint were noted by the Advocate Commissioner towards east up to the western boundary of the suit property. That according to the respondents, if at all happened, occurred after the Advocate Commissioner inspected O.P(C).No.34 of 2011 -: 4 :- the property on 15.10.2009. Assuming that there are some changes made by the respondents in their property that cannot mean that what the Advocate Commissioner has reported in Exts.P1 and P1(a) are not correct. I must also bear in mind, as seen from the copy of deposition of DW1 that he stated in the evidence that presently there is no such pathway and that when the Commissioner visited the property (on 15.10.2009) that pathway was in existence. In view of the above, I am not inclined to think that at the belated stage there should be a further inspection by the Advocate Commissioner. I do not find reason to interfere. This original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-