IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 WP(C).No. 37735 of 2007(P) ------------------------------------- PETITIONER : ------------------- ST.THOMAS CHURCH, RATNAGIRI, REPRESENTED BY THE VICAR FATHER JOSEPH PUTHIYATH, RESIDING AT ST.THOMAS CHURCH PARISH HOUSE. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH.K.SASI RESPONDENTS : ---------------------- 1. JOHNY ROY, CHIRAYIL HOUSE, KANAKARY KARA, KANAKARY VILLAGE-686 632. 2. ANNAKUTTY, W/O.C.S.LUKOSE, DO. DO. 3. THOMAS JOSEPH, PERINGATTU HOUSE, THELLAKOM KARA, 686 016. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37735 of 2007(P) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1: A TRUE COPY OF THE PLAINT DATED 28.05.2007 EXT.P2: A TRUE COPY OF THE WRITTEN STATEMENT DATED 23.07.2007 THE 1ST RESPONDENT EXT.P3: A TRUE COPY OF THE COMMISSIONER'S REPORT AND THE ROUGH SKETCH DATED 12.07.2007 EXT.P4: A TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER DATED 28.05.2007 EXT.P5: A TRUE COPY OF THE ORDER DATED 03.10.2007 IN I.A.NO.1104 OF 2007 IN O.S.NO.102 OF 2007, MUNSIFF'S COURT, ETTUMANOOR -TRUE COPY- P.A. TO JUDGE pac M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 37735 OF 2007 ............................................ DATED THIS THE 9th DAY OF JULY, 2008 JUDGMENT Petitioner is the first plaintiff in O.S.102 of 2007 on the file of Munsiff Court, Ettumanoor. Respondents are the defendants. The suit is for declaration that plaint A schedule property is entitled to get lateral support from plaint B schedule property by right of easement by prescription and also for mandatory injunction. I.A.1104 of 2007 was filed for appointment of an expert Commission, which was dismissed by the learned Munsiff under Ext.P5 order. This petition is filed under Article 227 of Constitution of India, challenging Ext.P5 order. 2. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that for establishing the right of lateral support by prescription claimed by plaintiffs, report by an expert Commission is necessary and learned Munsiff was not justified in dismissing the application on the ground that an Advocate Commissioner has submitted the report. 3. On hearing the learned counsel and going through Ext.P5 order, it is clear that learned Munsiff has not considered W[(C) 37735/2007 2 the application in the proper perspective. When the right of lateral support by easement of prescription and a mandatory injunction to remove the structure constructed in plaint B schedule property is sought, question regarding the burden caused to the property is relevant. It is for that purpose, appointment of an expert Commission was sought. The fact that Advocate Commissioner has submitted a report earlier, showing the nature of the construction as well as the distance from the plaint B schedule property may not suffice for resolving the dispute. In such circumstances, Ext.P5 order is quashed. Learned Munsiff is directed to appoint an Advocate Commission as sought for in I.A.1104 of 2007 at the expense of the plaintiff. M.SASIDHARAN NAMBIAR, JUDGE lgk/-