IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 11619 of 2008(G) -------------------------- AGAINST THE ORDER IN IA.910/2007 IN OS.130/2007 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... PETITIONER: -------------------- JOSE JOSEPH, S/O.JOSEPH, AGED 53 YEARS RESIDING AT PORKKATTIL, MELUMPARA KARA KONDOOR VILLAGE, MEENACHIL THALUK, AMPARANIRAPPEL P.O., KOTTAYAM 686578. BY ADV. SRI.MANUEL KACHIRAMATTAM RESPONDENTS: ------------------------- 1. P.C.JOSEPH, S/O.CHACKO, AGED ABOUT 75 YEARS, RESIDING AT PERUMPALLIL, MELUMPARA KARA, KONDOOR VILLAGE, MEENACHIL THALUK, KOTTAYAM. 2. MATHAI, S/O.MATHAI, AGED 53 YEARS, RESIDING AT AMPATTU, MELUMPARA KARA, KONDOOR VILLAGE, MEENACHIL THALUK. AMLPARANIRAPPEL PO, KOTTAYAM 686578 BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 11619 OF 2008 --------------------- Dated this the 4th day of April, 2008 JUDGMENT This writ petition is preferred against the order of the Munsiff, Irattupetta, in IA 910/07 in OS 130/07. It is an application filed by the plaintiffs for appointing a Commissioner with the assistance of a Surveyor. A perusal of the order would reveal that the dispute is with respect to the nature of a way included as item No.2 in the plaint schedule. One would contend that it is a public pathway and the other contends it is not. The court below has stated that materials are available in the form of commissioner's report regarding the lie, length and width of the road. If it is to be a public road, it may be by dedication. These are matters which have to be proved by evidence and not by an inspection of the property by the Commissioner or the Taluk Surveyor, as the case may be. If there are materials to show that the former by lane has been widened to a pathway, it also can be proved by production of the documents if available. But at this stage, as correctly observed by the court below, there is no need for issuance of a fresh commission. The writ petition is accordingly dismissed. M.N.KRISHNAN, JUDGE vps