IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 OP(C).No. 2974 of 2011(O) ------------------------------------ ORDER IN IA NO.5259/2010 IN OS.567/2008 of THE PRINCIPAL MUNSIFF- II, KOZHIKODE ................................................................................................................................ PETITIONER / 1ST DEFENDANT: ----------------------------------------------- KALPAKA RUBBER PLANTATIONS THIRUVAMBADY AMSOM DESOM, THIRUVAMBADY,REPRESENTED BY ITS MANAGING DIRECTOR P.V.GANGADHARAN, S/O.LATE P.V.SAMY, AGED 65 YEARS. BY ADVS. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR RESPONDENTS / DEFENDANTS: ---------------------------------------------- 1. ANDARATHATH CHINNAMMA, W/O.LATE MATHAYI, AGED 78 YEARS, VENADU HOUSE,CHOOTTANIKKARA VILLAGE KURIKKADU DESOM, ERNAKULAM DISTRICT 682 312. 2. ANNAMMA, D/O.LATE ITTI, AGED 60 YEARS, NIRAPPATH HOUSE, THIRUVAMBADI AMSOM, KOZHIKODE 673 572. ADV. SRI. V.G.ARUN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- OP(C).No. 2974 of 2011(O) APPENDIX PETITIONER'S EXHIBITS : EXHIBIT P1. COPY OF THE PLAINT IN O.S 567/2008 ON THE FILES OF MUNSIFF COURT-II, KOZHIKODE. EXHIBIT P2. COPY OF THE WRITTEN STATEMENT IN O.S NO.567/2008 ON THE FILES OF MUNSIFF COURT-II, KOZHIKODE. EXHIBIT P3. COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 03.08.2008 IN O.S 567/2008 ON THE FILES OF MUNSIFF COURT – II, KOZHIKODE. EXHIBIT P4. COPY OF THE COMMISSION REPORT DATED 06.09.2010 IN O.S NO.567/2008 ON THE FILES OF MUNSIFF COURT-II, KOZHIKODE. EXHIBIT P5. COPY OF THE I.A 3951/10 IN O.S 567/2008 ON THE FILES OF MUNSIFF COURT-II, KOZHIKODE. EXHIBIT P6. COPY OF I.A 5258/2010 IN O.S 567/2008 ON THE FILES OF MUNSIFF COURT-II, KOZHIKODE. EXHIBIT P7. COPY OF THE I.A 5259/10 IN O.S 567/2008 ON THE FILES OF MUNSIFF COURT-II, KOZHIKODE. EXHIBIT P8. COPY OF THE ORDER DATED 12.08.2011 IN I.A NO.5259/2010 IN O.S NO.567/2008 ON THE FILES OF MUNSIFF COURT-II, KOZHIKODE. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE DSV/- THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2974 of 2011 ==================================== Dated this the 14th day of December, 2011 J U D G M E N T Respondents filed O.S. No.567 of 2008 in the court of learned Principal Munsiff-II, Kozhikode for a decree for prohibitory injunction to preserve right of access he claimed through property of petitioner. According to the first respondent, the way referred to in the plaint is the only access to plaint A schedule belonging to him. Petitioner who owns an estate through which the way allegedly existed contended that there is no such property as described in plaint B schedule belonging to the respondents. He disputed identity of the said property. Obviously to prove identity of property belonging to the first respondent, an Advocate Commissioner was appointed who, after inspection submitted Ext.P3, report stating that he is unable to identify the suit property and locate it without the assistance of a Surveyor. Trial court appointed a Surveyor to assist the Advocate Commissioner. Advocate Commissioner with the assistance of Surveyor inspected the property and submitted Ext.P4, report and plan showing property allegedly belonging to the first respondent and the estate belonging to the petitioner. That was followed by O.P(C) No.2974 of 2011 -: 2 :- petitioner filing Ext.P5, application to set aside Ext.P3, report and plan contending that there is no proper identification of the property allegedly belonging to the first respondent. It was contended that though as per plaint schedule descriptions property on the south of property allegedly belonging to the first respondent belongs to Kambli Govindankutty Nair, that property is situated a mile away from property of the first respondent. On Ext.P5, the Advocate Commissioner was examined. Petitioner wanted to examine a private Surveyor who is said to have prepared a plan of estate of petitioner a few years back in connection with an application submitted to the Rubber Board for registration. An application to that effect was preferred. That was objected by the first respondent contending that before the Advocate Commissioner and Surveyor inspecting the property there was a request from the first respondent to direct petitioner produce plan of his estate. At that time, plea taken by petitioner was that he was not having any such plan. Learned Munsiff was impressed by the said objection and held that in view of that plea taken by petitioner it is not clear how petitioner is now in possession of the plan and hence he cannot be allowed to examine the private Surveyor. The application O.P(C) No.2974 of 2011 -: 3 :- was dismissed as per Ext.P8, order which is under challenge. 2. Learned counsel for petitioner contended that petitioner has explained the circumstances in which petitioner happened to say that he was not in possession of the plan of his property. According to the petitioner, he was not in custody of the plan, after Ext.P4, report and plan were submitted he consulted his Surveyor, a private Surveyor whether Ext.P4 report and plan are correct. At that time Surveyor produced a copy of the plan submitted to the Rubber Board which he had kept in his custody. It is that plan which petitioner wanted to summon and prove by examining the private Surveyor by Ext.P5, application. Learned counsel requested that petitioner may be given opportunity to adduce evidence in support of the contentions raised in Ext.P5, application. 3. Learned counsel for first respondent contended that a detailed enquiry into the matter is not required at this stage and that to decide whether plan and report submitted by the Advocate Commissioner are correct or not there is no need to make reference to a survey plan said to be in the custody of the private Surveyor. It is also pointed out by learned counsel that property of first respondent has properly been identified by the O.P(C) No.2974 of 2011 -: 4 :- Advocate Commissioner and Surveyor in Ext.P4, report and sketch. 4. Having heard counsel on both sides I am inclined to think that Ext.P5, application need be directed to be decided in the course of trial. Report and plan submitted by the Advocate Commissioner is only a piece of evidence in the case. Counsel for petitioner submitted that if Ext.P5, application can be kept alive for consideration in the course of trial it is not necessary that at this stage further enquiry is conducted and orders passed on the said application. Learned counsel for first respondent has no serious objection to that course being adopted. In that view of the matter also, I am inclined to think that further enquiry on Ext.P5, application is not necessary and learned Munsiff can be directed to dispose of Ext.P5, application while trying the suit. 5. But I am not very much impressed by the reason stated by learned Munsiff to refuse the request of petitioner to summon the private Surveyor who is said to have prepared the plan of property of petitioner. What is the probative value of that plan if introduced in evidence is a matter which learned Munsiff has to decide having regard to the facts, circumstances and evidence. But evidence which petitioner intends to let in, O.P(C) No.2974 of 2011 -: 5 :- need not be shut out. In view of what I have stated above, it is sufficient that petitioner is permitted to examine the private Surveyor and prove the plan in the course of trial. Original Petition is disposed of as follows: (a) Exhibit P8, order is set aside. (b) It is directed that Ext.P5, application need be considered along with the suit in the course of trial. (c) It is made clear that evidence of Advocate Commissioner already recorded can be treated as evidence recorded in the trial of the suit. (d) In the course of trial it will be open to the petitioner to adduce evidence in support of his contention including examination of the private Surveyor and prove the plan said to be prepared by him. THOMAS P. JOSEPH, JUDGE. vsv