IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 WP(C).No. 8934 of 2010(O) ------------------------- OS.63/2006 of SUB COURT, MUVATTUPUZHA .................... PETITIONER(S): -------------------------- 1. JOSE THOMAS, S/O.THOMAS, AGED 62 YEARS, KOOTTAPPILLIL HOUSE, PIDAVOOR KARA,VARAPPETTY VILLAGE, KOZHIPPILLY PO, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 2. JIJO, S/O.JOSE, AGED 22 YEARS, KOOTTAPPILLIL HOUSE, PIDAVOOR KARA,VARAPPETTY VILLAGE, KOZHIPPILLY PO, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. BY ADV. MR.ALEXANDER JOSEPH RESPONDENT(S): ------------------------ 1. ALEYKUTTY,W/O.LATE SKARIA, AGED 59 YEARS, KOOTHAMATTATHIL HOUSE, PIDAVOOR KARA, KOZHIPPILLY PO, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM. 2. PEETHAMBARAN,S/O.NARAYANAN, AGED 63 YEARS,KIZHAKOOTTAYIL HOUSE,PIDAVOOR KARA, VARAPPETTY VILLAGE,KOZHIPPILLY PO, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 3. SIJI,S/O.LATE SKARIA, KOOTHAMATTATHIL HOUSE, PIDAVOOR KARA, KOZHIPPILLY PO, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM. 4. REJI,S/O.LATE SKARIA, KOOTHAMATTATHIL HOUSE, PIDAVOOR KARA, KOZHIPPILLY PO, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM. 5. SIJA,D/O.LATE SKARIA, KOOTHAMATTATHIL HOUSE, PIDAVOOR KARA KOZHIPPILLY PO, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J --------------------------- W.P.C.No.8934 OF 2010 --------------------------------------------- Dated this the 17th day of March, 2010 J U D G M E N T Aggrieved by the order dated 17.2.2010 in I.A.No.341/09 in O.S.63/06 of Sub Court Muvattupuzha, the petitioners before the court below have come up in this proceedings. 2. The petitioners are the defendants in O.S.63/06. The suit was one for permanent prohibitory injunction. The dispute relates to a path way, which s shown in C schedule. Along with the suit a Commission Application was filed and it was allowed. The commissioner has filed a report and rough sketch. 3. Long thereafter, petitioners filed present I.A. They want a detailed report with survey sketch which according to them was absolutely necessary for the proper determination of the issue involved in the case. The petition was opposed by the respondents before the court below. The court below on an evaluation of the materials, came to a conclusion that the prayer made by the petitioner is quite unjustified and unnecessary. The petition is dismissed accordingly. WPC.8934/10 2 4. Th learned counsel appearing for the petitioner pointed out that the definite stand taken by the plaintiff that the path way was made/widened using a portion of his property, and therefore he has right to use the way. Petitioner's counsel pointed out that claim is wrong and no portion of the property owned by the plaintiff has been used for widening the way. In order to prove the same measurement of the property of the plaintiff and pathway are necessary. A proper report sketch and plan have to be obtained. 5. The above contention is without merits. If plaintiff has a case that he has surrendered a portion of his property to widen the pathway he has to establish the said fact. It is not necessary for the defendants to take up that responsibility to establish that the plaintiff has not given a portion of his way. The lower court has noticed that the particulars and details of the way and properties are ascertainable from the available commissioner's report and plan. The court below found that further report and survey sketch are not necessary. 6. The claim of the petitioners who are defendants i the suit is that they are entitled to use 'C' schedule pathway by way of easement by grant. That being the position the view of the court WPC.8934/10 3 below that survey measurement, sketch and plan are unnecessary is perfectly justified. There is no reason to interfere with the order. 7. However, it is made clear that if the lower court, during trial feels that the available report and plan are not helpful and sufficient the petitioners will be at liberty to move the court below for appropriate orders. With the above observation this petition stands dismissed. P. BHAVADASAN, JUDGE. Sou.