IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 WP(C).No. 25260 of 2008(F) ----------------------------------- OS.254/2008 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): --------------------- JOJI, S/O JOSEPH, KOLENCHERY HOUSE, ANGADI KARA, KOTHAMANGLAM VILLAGE. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SMT.V.DEEPA RESPONDENT(S): ------------------------- DOMINIC, S/O VARGHESE, KOLENCHERY HOUSE, ANGADI KARA, KOTHAMANGALAM VILLAGE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25260 of 2008(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - DATED 22.7.2007, TRUE COPY OF THE ORDER IN I.A. NO. 2318 OF 2008 IN O.S. 254/2008, MUNSIFF'S COURT, MUVATTUPUZHA EXT.P2 - DATED 3.6.2008, TRUE COPY OF THE EXPARTE COMMISSION REPORT AND SKETCH FILED IN O.S. NO. 254 OF 2008, MUNSIFF'S COURT MUVATTUPUZHA. EXT.P3 - DATED 23.6.1977, TRUE COPY OF THE AGREEMENT EXECUTED BY VARGHESE AND OTHERS AND THE PETITIONER AND OTHERS. /TRUE COPY/ PA TO JUDGE rhs K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 25260 of 2008 ------------------------------ Dated this the 18th day of November, 2008 JUDGMENT The prayer in this writ petition is to set aside Ext.P1 order and to allow I.A.2318 of 2008 in O.S 254 of 2008 for issue of a commission to prepare a survey plan of 'B' schedule pathway. O.S. No.254 of 2008 on the file of the Munsiff's court, Muvattupuzha was filed by the petitioner for fixation of the boundaries of plaint B schedule pathway and for restraining the defendant from altering the nature and lie of the said B schedule pathway or causing any obstruction in the said pathway. The pathway is one kept apart for the use of the petitioner/plaintiff and the respondent/defendant under Exhibit P3 agreement executed between the predecessors of both the plaintiff and defendant. It is submitted that the defendant is the son of varghese, party No.1 to Exhibit P3 and Joji, the plaintiff was a minor under the guardian ship of the 4th party, Jancy. The recitals in Exhibit P3 provides for the B schedule pathway being used in common. It is submitted that item no.1 property is in possession of the defendant and plaint B schedule pathway is a pathway described in item No.1 running almost through 2 acres 21 cents and having a width of 16 feet. The recital in Exhibit P3 shows that the pathway at the time of Exhibit W.P(c) No. 25260/2008 2 P3 agreement was not having as much as 16 feet width, but the parties were agreeing to form the pathway to a width of 16 feet. It is submitted by counsel on both sides that accordingly 16 feet pathway has been so formed and that is in use by the plaintiff and defendant as well and that it is having a length of 510 feet upto the plaint A schedule property that belongs to the petitioner/plaintiff. Thus length and width of B schedule pathway is not in dispute. It is also not in dispute as stated by commissioner that at the entrance of the said pathway from the said road, a gate is provided on concrete pillars and the said gate is more than 12 years old. Exhibit P2 commission report shows that the pathway had not been tampered with by the respondent/defendant. The pathway lies almost in a straight line as described by the commissioner in Exhibit P2. Counsel for respondent submits that the respondent/defendant does not want to alter the lie of B schedule pathway in any manner whatsoever so as to interfere with the existing use by the plaintiff of the said pathway and in the circumstances the request for issuance of commission to survey the property and fix the boundaries of B schedule pathway is ill conceived. 2. Considering the entire circumstances of the case, I concur with the views of the court below that no survey commission is required to be W.P(c) No. 25260/2008 3 issued on the facts and circumstance of this case, especially when the width of the road is not reduced and there is no encroachment into B schedule pathway by the defendant into any portion thereof and there is a substantial gate provided also at the entry point of the B schedule from the road and there is no chance of any one altering the said pathway in view of the existence of gate at the entry point. If at all the plaintiff wants, he can put up a gate at the entry into A schedule from the B schedule pathway, so that there will be concrete evidence as to where the entry point and exit point are. In the circumstances, I confirm the order of the court below, refusing to issue commission to prepare a survey plan of 'B' schedule pathway and dismiss this Writ Petition. K.P. BALACHANDRAN, JUDGE scm