IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 OP(C).No. 3594 of 2011(O) ---------------------------------- AGAINST THE ORDER DATED 27/07/2011 IN IA 2385/2011 IN OS.850/2007 of ADDL.M.C.,IRINJALAKUDA .......................................... PETITIONER(S): ----------------------- VENUGOPALAN, S/O.AMBUJAKSHI AMMA, VAYATTU HOUSE,VADAKKUMBHAGAM VILLAGE, ASHTAMICHIRA DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): ------------------------ 1. REMADEVI, D/O.NANIKUTTY AMMA, CHAMAPARAMBIL HOUSE, VADAKKUMBHAGAM VILLAGE, ASHTAMICHIRA DESOM,MUKUNDAPURAM TALUK 2. DINESH, S/O.CHANDRAN MARAR,CHAMAPARAMBIL HOUSE, VADAKKUMBHAGAM VILLAGE, ASHTAMICHIRA DESOM, MUKUNDAPURAM TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG OP(C).No. 3594 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - COPY OF THE PARTITION DEED NO.1771/1980 BETWEEN THE PLAINTIFF AND SISTER. EXT.P2 - COPY OF THE SETTLEMENT DEED NO 759/1992. EXT.P3 - COPY OF THE PLAINT IN O.S. 850/07 ON THE FILE OF ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. EXT.P4 - COPY OF THE WRITTEN STATEMENT IN O.S. 850/07 ON THE FILE OF ADDITIONAL MUNSIFF COURT,IRINJALAKUDA. EXT.P5 - COPY OF I.A.2385/2011 IN O.S. 850/2007 OF ADDITIONAL MUNSIFF COURT,IRINJALAKUDA. EXT.P6 - COPY OF THE OBJECTION FILED BY RESPONDENTS IN EXHIBIT P5. EXT.P7 - COPY OF THE ORDER IN I.A. 2385/2011 IN O.S. 850/2007 OF ADDITIONAL MUNSIFF COURT,IRINJALAKUDA. RESPONDENTS' EXHIBITS - NIL /TRUE COPY/ P.A.TO JUDGE DG THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3594 of 2011 ==================================== Dated this the 29th day of November, 2011 J U D G M E N T First plaintiff in O.S. No.850 of 2007 of the court of learned Additional Munsiff, Irinjalakuda is the petitioner before me, aggrieved by the order dated 27.07.2011 on I.A. No.2385 of 2011 refusing to appoint a survey commission to measure the properties. 2. Petitioner and second plaintiff (who is no more) filed the suit for a decree for prohibitory injunction to restrain the respondents from using the way on the side of plaint B schedule which according to them was set out for use of petitioner as per document No.759/1992 executed by the second plaintiff in favour of the petitioner. There were earlier litigations in respect of the same way against certain others. While so, petitioner filed I.A. No.2385 of 2011 for appointment of a survey commission to measure the suit property and property of the respondents based on survey records and title deeds. That application was dismissed by the learned Munsiff which is under challenge. 3. It is contended by learned counsel that one of the O.P(C) No.3594 of 2011 -: 2 :- earlier suits filed by the petitioner was dismissed for the reason that there was no proper identification of the property. 4. But that decision should depend on the facts of that case. Here, learned Munsiff has observed that respondents have not disputed identity of the way in question and instead, they admitted the existence of way having width of 2.5 metres along the eastern side of plaint B schedule. Their only claim is that petitioner has no exclusive right over the said way. Learned Munsiff has also observed that in view of the above contention, it is not necessary to appoint a survey commission. 5. Exhibit P4, written statement filed by the respondents also shows that claim made by them is that second plaintiff has no absolute right over the disputed property and that the way is in existence from time immemorial and not from 1992 as claimed by petitioner and second plaintiff. In paragraph 12 of the written statement respondents have claimed that they have a right to use the way. Learned Munsiff observed that on the facts pleaded, a survey commission is not required. I am not inclined to interfere with the impugned order. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv